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

[2018] AATA 2308

Lisi and Secretary, Department of Social Services (Social services second review) [2018] AATA 2308 (19 July 2018)

Division:GENERAL DIVISION

File Number(s):2017/5233      

Re:Bekim Lisi 

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Mr Richard West, Member

Date:19 July 2018

Place:Melbourne

The decision to cancel the Applicant’s Disability Support Pension under s.80(1) of the Social Security (Administration) Act 1999  is set aside.

.............................[sgd]...........................................

Mr Richard West, Member

Catchwords

SOCIAL SECURITY – cancellation of disability support pension – whether conditions rate 20 points or more under Impairment Tables – post traumatic stress disorder – depression -  decision set aside.

Legislation

Social Security Act 1991
Social Security (Administration) Act 1999

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 Covenden v Secretary, Department of Social Services [2018] AATA 353

Secondary Materials

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

REASONS FOR DECISION

Mr Richard West, Member

19 July 2018

1. This matter concerns the decision to cancel the Applicant’s Disability Support Pension (DSP) and is a Second Tier Review of that decision.

2. The relevant history of the matter is as follows:

   ·The Applicant was granted a DSP on 23 May 2005.

   ·Centrelink conducted a review of the Applicant’s entitlement to a DSP in 2016.

   ·On 30 November 2016 an officer of Centrelink decided to cancel the Applicant’s DSP on the basis that the Applicant no longer satisfied the eligibility criteria, specifically that his impairments attracted an impairment rating of 0 points (Initial Decision).

   ·On 4 January 2017 an authorised review officer (ARO) of Centrelink affirmed the Initial Decision (Review Decision).

   ·On 27 February 2017 the Applicant sought a review of the Review Decision by the Social Services and Child Support Division of this Tribunal (First Tier Review).

   ·On 26 July 2017 the First Tier Review affirmed the Review Decision.

   ·On 29 August 2017 the Applicant sought a review of the First Tier Review by the General Division of this Tribunal (Second Tier Review).

   ·I conducted the Second Tier Review at a hearing on 30 April 2018.

3. In the proceedings the Applicant was represented by Mr Tim Noonan, a solicitor from Victorian Legal Aid.  The Respondent was represented by Mr Pietro Nacion a solicitor from Sparke Helmore. The proceedings were conducted with the assistance of an interpreter in the Albanian language.

   LEGISLATION

4. I have had regard  to the following relevant legislation in making this decision:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables): a determination made by the Minister under s.26(1) of the Act which came into effect on 1 January 2012.

   RELEVANT DATE

5. In reviewing a decision to cancel DSP the Tribunal must assess whether the Applicant satisfies the eligibility criteria for payment under s.94 of the Act as at the date of cancellation, in this case 30 November 2016.

6. Evidence of deterioration in the claimant’s condition subsequent to the qualifying period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the claimant’s condition at the relevant date. [1]

   [1] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigeonous Affairs [2012] AATA 992 at [34}; Re Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33] and Re Covenden v Secretary, Department of Social Services [2018] AATA 353 at [7].

   RELEVANT QUESTION

7. The decision to cancel the Applicant’s DSP was made pursuant to s.80(1) of the Administration Act which provides:

   If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

   (a)who is not, or was not, qualified for the payment; or

   (b)to whom the payment is not, or was not, payable;

   the Secretary is to determine that the payment is to be cancelled or suspended.

8. I accept the submission of the Applicant that the relevant statutory question for the Tribunal to ask in reviewing the decision is whether the Tribunal can be satisfied that, at 30 November 2016, the Applicant was not qualified for the payment.

   DSP QUALIFICATION

9. To qualify for a DSP an applicant must satisfy the requirements set out in s.94(1) of the Act.

10. In essence s.94(1) requires that:

    ·the Applicant have a physical, intellectual or psychiatric impairment;

    ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than 2 years, and together rate at least 20 points on the Impairment Tables; and

    ·the Applicant have a continuing inability to work;

    THE EVIDENCE

11. In conducting the Second Tier Review I have had regard to the documents produced to the Tribunal by the Secretary pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents) and to the oral evidence of Dr Geoffery Hogan consultant psychiatrist, the Applicant, the Applicant’s son Valon Lisi, and, a registered psychologist identified for the purpose of the proceedings as Witness moa291[2].

    [2] The identity of the witness was withheld by the Tribunal during the First AAT review in accordance with  Departmental practice to de-identify the author of job assessment reports and maintained by consent of the parties in the current proceedings.

12. In the First Tier Review decision Member Carson found that the Applicant’s conditions of post-traumatic stress disorder (PTSD) and major depression were not fully diagnosed, treated and stabilised as at 30 November 2016 and as a consequence any impairments from the conditions could not be rated under the Impairment Tables.

13. Section 6(3)(a) of the Impairment Tables makes it clear that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent.  A ‘permanent condition’ is defined in s.6(4) as a condition that has been fully diagnosed (by an appropriately qualified medical practitioner), fully treated and fully stabilised.

14. Subsequent to the First Tier Review, the Applicant was assessed by Dr Geoffrey Hogan, a consultant psychiatrist who provided a report to the Applicant’s treating doctor dated 29 September 2017. The Report included a diagnosis that the Applicant suffers from a chronic and severe post-traumatic stress disorder and major depressive disorder as a result of his experiences in the Kosovo War.[3]  This diagnosis confirmed the diagnosis of Dr Bosanac who had been treating the Applicant for a number of years.  While Dr Brosanac had completed studies in psychiatry[4] he was not a registered psychiatrist. The parties accepted that the confirmation provided by Dr Hogan’s report meant that the Applicant’s condition was fully diagnosed as at 30 November 2016 and the Applicant satisfied s.6(4)(a) of the Impairment Tables, on the basis that he suffered from a psychiatric impairment, namely PTSD and major depression disorder (MDD). 

    [3] Exhibit A2

    [4] See T18 at page 91

15. The further consideration for the Tribunal in relation to the conditions is whether they satisfy s.6(4)(b) and (c) as at 30 November 2016.

16. Prior to 30 November 2016 the Applicant had been under the care of his general practitioner Dr Gradisic and received treatment from Dr Bosanac.

17. Two reports from Dr Bosanac were admitted into evidence as part of the T-Documents, the first dated 25 May 2005[5] and the second dated 5 July 2016[6].  The report of 25 May 2005 was in support of the Applicant’s application for emergency housing and gave no details of the treatment prescribed by Dr Bosanac.  The report of 5 July 2016 was a Medical Report prepared for Centrelink.  It provided the following relevant information:

    [5] T6 at page 23

    [6] T18 at page 81-90

    B Current Treatment

    [The Applicant] requires psychiatric treatment when clinically relevant and appropriate…clinical symptoms vary over time in severity and frequency…Currently [the Applicant] receives regular psychotherapy (often in the form of CBT and medications: antidepressants PAROXETINE and mood stabilizer OLANZAPINE with anoxylitic OXAZEPAM as per need basis

    …

    E Future/Planned treatment

    Active and aggressive psychiatric treatment to continue, as recently [the Applicant] presented with one of his many relapses.

    F Patient Compliance with Recommended Treatment

    Due to his active symptoms of both PTSD and MDD when acutely unwell his cognitive abilities are usually quite markedly impaired hence having negative impact on his compliance.

    …

    G Current Symptoms

    Full syndrome of major depression is present (vegetative, emotional and cognitive) with symptoms of relapsed PTSD (hyperarousal, avoidance, nightmares, insomnia etc)

18. In describing the effect of the condition on the Applicant’s ability to function over the next two years, Dr Bosanac stated As evidence show PTSD, ... is ongoing mental health problem which has periods of remissions and relapses … is totally unpredictable…

19. Three reports from Dr Gradisic were admitted into evidence as part of the T-Documents, being reports for Centrelink dated 1 June 2005[7], 4 July 2005[8]and 30 January 2008[9].

    [7] T6 at pages 24-30

    [8] T8 at pages 33-39

    [9] T10 at pages 56-62

20. The reports of 1 June 2005 and 4 July 2005 state in relation to PTSD and Major Depression:

    Current Treatment: …

    counselling

    …

    psychiatric care Dr. V.  Bosanac

21. The report of 30 January 2008 states in relation to PTSD and Depression:

    Current treatment: …

    counselling

    psychiatrist

    medication

22. In July 2016 the Applicant was referred by his treating doctor to Dr Roy Nallaratnam, a consultant psychiatrist.  Dr Nallaratnam provided an initial report on 30 July 2016[10] in which he concluded that the Applicant was unable to hold down a job.  Dr Nallaratnam noted in the report that the Applicant has had no psychiatric medication, and observed that he appeared to be dependent on Oxazeparin and Mersyndol Forte.  The report did not include a diagnosis of the Applicant’s condition.  The records produced to the Tribunal indicated that the Applicant saw Dr Nallaratnam three times prior to the cancellation date and six times subsequently. The Applicant gave evidence that he found that Dr Nallaratnam did not provide any positive benefit and he was subsequently referred to Dr Geoffrey Hogan, a consultant psychiatrist.

    [10] T16 at page 76

23. Dr Hogan first saw the Applicant in September 2017 on referral from Dr Lydia Nakovska.  He commented in his report[11] on the psychopharmacological management of the Applicant to that point.  Dr Hogan said that the Applicant:

    …suffers with a chronic post-traumatic stress disorder.  He is quite incapable because of the severity of his ill-health of pursuing any employment.  This will undoubtedly be permanent.  In regard to his psychopharmacological management, he might achieve a degree of symptomatic relief (which I am sure would never be sufficient to permit future employment) from more usual dosage of an SSRI.  Paroxetine 20mg daily is subtherapeutic for PTSD.  Doses of 60-80mg daily would be common.  Zyprexa appears well tolerated and an increased dose on top of a more robust SSRI dosage may give him some degree of symptomatic relief.

    [11] Exhibit A2

24. Dr Hogan was called to give evidence by telephone at the hearing and opined on the treatment that the Applicant had been receiving as at the relevant date.  He stated that the Applicant’s symptoms indicated severe PTSD and associated depression and that he doubted that there had been a significant change in his condition over the period from November 2016 (when his DSP was cancelled) and September 2017 when he first saw the Applicant.  He stated that the dosage of Paroxetine 20mg daily previously prescribed by Dr Bosanac was suboptimal.  He said he believed that the Applicant had been compliant with his treatment as prescribed as best he could.  He said the treatment prescribed by Dr Bosanac was not good treatment.  He expressed concern that the treatment had continued unchanged for around 10 years and had not been regularly reviewed.  He opined that if a course of treatment was not working after 3 months then another approach should be tried.

25. He said that since he started treating the Applicant he had prescribed a dosage of 80 - 100mg per day of Paroxetine and 80mg per day of Olanzapine.  He said that he had increased the dosage over the last 5 months, but as the Applicant’s condition had not improved he foresaw changing his medication in the next week to Desvenlafaxine, an anti-depressant, to try to get a positive response. He said he would prescribe an initial dose of 100mg per week increasing to 200mg and then 300mg over the next three months and if this did not work he would try another SSRI.  He said that the prospects of a positive response to his recommended treatment are variable and that they were likely to be a partial response and the Applicant would not be expected to recover to be able to engage in regular employment.  He said that it was not probable that medical intervention would enable the Applicant to work 15 hours per week.

26. The Applicant provided a witness statement which he adopted as part of his oral evidence[12].  It relevantly states at [7] that the Applicant:

    ... has taken antidepressants for a very long time, but cannot remember how long, the specific doses or types of antidepressants.  He has been given many medications by his doctor, and does the best he can to take them in the way the doctor tells him to.  There have been some times he stopped taking his medications as he felt that the side effects were too overwhelming, but has done his best to keep them up.  He has seen many counsellors over the years but struggles to remember particular details.  He remembers attending Dr Bosanac, who provided counselling support.  Since the commencement of his Centrelink dispute Dr Bosanac referred him to Dr Hogan as Dr Bosanac was concerned that [the Applicant] needed to see someone who is practising as a psychiatrist.”

    [12] Exhibit A2

27. The Applicant gave evidence at the hearing but demonstrated difficulty concentrating on the questions being asked and professed a very poor recollection of his past treatment.  At times he became distressed and agitated. Overall the Applicant presented as a person suffering significant impairment as a result of his psychological condition. 

28. The Applicant’s son, Valon Lisi, also gave evidence.  He explained that the Applicant has lived with him for around one to two years after an unsuccessful attempt to live by himself following his divorce. He said that he looks after his father and his mother who also lives separately in his house. He said that both of his parents are suffering from psychological impairments and he looks after all of their needs such as cooking and cleaning.  He said that the Applicant rarely leaves his room or the house.  He said that he has assisted the Applicant to return to Kosovo on several occasions to stay with his other son who lives in Kosovo.  To enable the Applicant to travel he has arranged for another member of the Albanian community in Melbourne who was travelling at about the same time to accompany the Applicant on the flight.  He said that his brother looks after the Applicant when he is in Kosovo.

29. The decision to cancel the Applicant’s DSP was made following a Job Capacity Assessment (JCA) conducted by Witness moa291 on 14 September 2016.  The 2016 JCA report[13] noted the Applicant’s medical treatment as:

    Treatment to date: medication, paroxetine, olanzapine, oxazepam (on as needs basis) as per MR.

    Client reported taking medication for 5 years.  Client reported he sees Dr Bosanac every 1-2 months.  Client reported he began to see a Psychiatrist Dr Roy Nallaratnum 3-4 times in 2016.  No current medical evidence that client has seen a psychiatrist, clinical psychologist nor counselling psychologist to date.

    [13] T19 at pages 92-95

30. The 2016 JCA report noted that the Applicant’s condition had not been diagnosed by a registered psychiatrist/psychologist and concluded that the Applicant’s condition was not fully diagnosed, treated and stabilised.  Based on the evidence obtained in an interview with the Applicant the assessment was made that the Applicant had a baseline work capacity of between 15-22 hours per week with a capacity for work of 23-29 hours per week within 2 years with appropriate intervention.

31. The conclusions in the 2016 JCA report are at odds with earlier JCAs made on 20 March 2008[14] and 7 September 2005[15] which accepted the diagnosis of Dr Bosanac and concluded that the Applicant’s condition was fully diagnosed, treated and stabilised. They assessed the Applicant’s baseline work capacity as 0‑7 hours per week with a capacity for work of 0-7 hours per week within 2 years with appropriate intervention.

    [14] T11 at pages 64-68

    [15] PT9 at pages 41-52

32. Witness moa291 gave evidence as to a JCA she conducted with the Applicant over the telephone which was the basis of her JCA report dated 14 September 2016[16].  She gave evidence that the assessment was made without the assistance of an interpreter but she was satisfied that she and the Applicant could understand each other.  She explained that she had done many job assessments and did not have a clear recollection of her interaction with the Applicant beyond what she had noted in her report.

    [16] T19 at pages 92-96

    CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

33. It is accepted by the Respondent that the Applicant’s condition was fully diagnosed as at 30 November 2016 and the Applicant satisfied s.6(4)(a) of the Impairment Tables, on the basis that he suffered from a psychiatric impairment, namely PTSD and MDD.

34. It is for the Tribunal to be satisfied that the Applicant’s condition was fully treated and stabilised as at 30 November 2016. 

35. In considering whether a condition has been fully treated, s.6(5) of the Impairment Tables requires the decision‑maker to 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.

36. Under s.6(6) a condition is fully stabilised if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to enable the person to undertake work in the next 2 years;

    (b)the person has not undertaken reasonable treatment and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reasons for the person not to undertake reasonable treatment.

37. The Respondent contends that the Applicant’s mental health condition was not fully treated and stabilised at the cancellation date based on the lack of reasonable psychiatric intervention which resulted in non-systematic psychopharmacological management of the Applicant’s condition. 

38. The Respondent notes that the Applicant engaged in psychiatric intervention by Dr Nallaratnam, a psychiatrist, on 3 occasions before the cancellation date and on 6 occasions after the cancellation date.  Medicare records show that a further 10 attendances were held with Dr Hogan after the cancellation date.  The Respondent asserts that psychological treatment provided by Dr Bosanac prior to the cancellation date was not reasonable psychiatric treatment because Dr Bosanac is not registered as a psychiatrist or clinical psychologist with AHPRA. 

1. While Dr Bosanac is not an appropriately qualified medical practitioner for the purpose of diagnosis under s.6(5) of the Impairment Tables, it does not mean that his treatment of the Applicant over the 10 years or so prior to the cancellation date was not reasonable treatment for the purpose of s.6(6) and (7) of the Impairment Tables.  The evidence establishes that Dr Bosanac, while not registered as a psychiatrist or clinical psychologist, did have relevant qualifications[17].  The Applicant gave evidence that he had confidence in Dr Bosanac[18] stating, in his oral evidence that Dr Bosanac saved my life.  The evidence of PBS records establishes a history of Dr Bosanac prescribing anti‑depressant and anti-anxiety medication, albeit in lower doses than was thought appropriate by Dr Hogan.  The treatment regime adopted by Dr Bosanac was regular counselling, anti-depressant medication and psychiatric care[19].

   [17] PT18 at page 72

   [18] A matter acknowledged by the Tribunal in the First AAT review at PT 2 at page 9

   [19] T6 at page 25

2. The evidence of Dr Hogan did not establish that the treatment regime adopted by Dr Bosanac was unreasonable in the sense that there was available a demonstrably more effective form of treatment. There were two aspects to the treatment provided by Dr Bosanac, psychiatric/psychological counselling and psychotherapeutic medication.  Dr Hogan did not comment on the psychiatric/psychological counselling aspect of the treatment.  His report commented on the appropriateness of the psychotherapeutic medication prescribed by Dr Bosanac and opined that it was subtherapeutic.  At best the changes to the medication proposed by Dr Hogan held out the prospect of achieving
   “… a degree of symptomatic relief (which [he is] sure would never be sufficient to permit future employment)”.  Dr Hogan’s evidence indicated that the variations to the treatment he proposed were largely a matter of trial and error and designed to relieve symptoms but with no realistic prospect of enabling the Applicant to resume employment.

3. The Respondent has drawn attention to the period from June 2014 and July 2016 when PBS records indicate that the Applicant was not prescribed any medication nor receive treatment.  The Applicant could not explain this gap in his treatment and there was no evidence to indicate that this gap was as a result of a decision by Dr Bosanac as the treating doctor.  It seems more likely that the gap in treatment was a result of the Applicant’s failure to attend for treatment, most likely due to the intermittent nature of the condition[20], rather than a feature of the treatment itself.   

   [20] PT18 at page 84

4. The Applicant argues that the part of Dr Nallaratnam’s report indicating that the Applicant was not being treated with psychiatric medication should be disregarded because it directly contradicts Dr Bosanac’s evidence regarding the medication prescribed for the Applicant. I accept this submission.  The evidence clearly establishes that Dr Bosanac had prescribed Paroxetine as part of a group of medications for more than a decade.

5. Having considered all of this evidence I find that, at the cancellation date, the Applicant was receiving psychiatric treatment from Dr Nallaratnam, as a continuation of the treatment provided by Dr Bosanac, and that at the time it was planned that this treatment would be ongoing.  Whether or not the treatment provided by Dr Bosanac was reasonable treatment is questionable.  Nevertheless I am satisfied, having regard to the opinions of Dr Nallaratnam and Dr Hogan, that any further reasonable treatment would be unlikely to result in significant functional improvement and it would not have been expected that further treatment would have a realistic prospect of enabling the Applicant to resume employment. 

6. On this basis I find that, at the cancellation date, significant functional improvement enabling the Applicant to undertake work (of at least 15 hours per week) in the next two years could not be expected even if the Applicant undertook reasonable treatment.  I am therefore satisfied that the Applicant’s condition can properly be regarded as fully treated and stabilised at the cancellation date.

7. I next turn to consider Table 5 of the Impairment Tables. 

8. The Impairment Tables provide that evidence from a range of sources should be considered in determining which rating applies to the person being assessed.  Where a person’s mental health condition is episodic or fluctuates, the rating that best reflects the person’s overall functional ability must be applied taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate. The Impairment Tables require that an applicant must satisfy most of the descriptors for an impairment rating before the relevant points for that impairment rating can be attributed.  The term ‘most’ is to be taken as meaning at least half.  For Table 5 of the Impairment Tables this means the Applicant must satisfy at least four descriptors before the relevant points for a particular impairment rating can be attributed.

9. In assessing the Applicant’s condition against the descriptors in Table 5, the Respondent relies on the JCA report prepared by Witness moa291 on 14 September 2016[21] which found that the Applicant’s condition had not been fully diagnosed, treated or stabilised. The Respondent assessed the Applicant’s work capacity as 15‑22 hours per week with capacity for this to increase over 2 years with intervention to 23-29 hours per week.

   [21] PT19 at pages 92-96

10. I give little weight to this report for the following reasons:

    a.The report was based on a finding that the Applicant’s condition, at the time, was not fully diagnosed, treated and stabilised which is at odds with my findings in these proceedings.

    b.The assessment was based on a single interview conducted over the telephone without the assistance of an Albanian interpreter.  While the assessor gave evidence that she was satisfied that she and the Applicant understood each other during the interview, I note that the Applicant required the assistance of an interpreter during both the First Tier Review and at the hearing of the Second Tier Review.  This raises a question as to the reliability of the evidence upon which the assessor based her conclusions.

    c.The conclusion of the JCA regarding the Applicant’s work capacity is entirely at odds with the medical evidence regarding his work capability and the concession of the Respondent that the Applicant met the severe level of impairment under the work/training capacity descriptor under Table 5[22] of the Impairment Tables, which states that the person is unable to attend work, education or training on a regular basis over a lengthy period.

    d.Witness moa291 admitted in her evidence that she did not contact any of the Applicant’s treating doctors.

    e.The report relied on an assumption that the Applicant travelled overseas to Kosovo alone when the evidence of Valon Lisi established that on each occasion the Applicant was accompanied by a member of the Albanian community.

    f.

    Witness moa291 had no independent recollection of the interview when

    
    

    cross-examined about her report.

    [22] Secretary’s Statement of Issues, Facts and Contentions at paragraph 4.84(f)

11. The evidence establishes that the Applicant meets at least four of the descriptors for severe functional impact in Table 5  of the Impairment Tables as follows:

    Self care and independent living

12. The examples of severe functional impact given under this heading in Table 5 are that the person needs regular support to live independently, that is, needs visits or assistance at least twice per week from family, friend, health worker or support person.

13. The Applicant and his son, Valon, each gave evidence that the Applicant lives with his son and is dependent on him.  Valon gave evidence that the Applicant had attempted to live by himself in a unit in Frankston after his divorce from his wife.  Valon said that during this time he had had to regularly attend at the unit to look after his father who struggled to cope. This led them to sell the unit and the Applicant moving into Valon’s home approximately 2 years ago, prior to the cancellation date.  Valon says that he looks after the Applicant and his mother who also lives in the house, although separately from the Applicant. Valon gave evidence that he cooks and cleans for the Applicant and attends to the payment of his bills using the Applicant’s credit card.

14. Dr Bosanac noted in his report of July 2016 that the Applicant currently lives with his son and is totally dependent on his care[23].

    [23] PT18 at page 89

15. On the basis of this evidence I am satisfied that the Applicant’s condition at the cancellation date satisfied the severe level for this descriptor.

    Social/recreational activities and travel

16. The examples of severe functional impact given under this heading in Table 5 are that the person travels alone only in familiar areas (such as the local shops or other familiar venues).

17. The Applicant stated in his written statement[24] that, apart from occasional trips to the local shops to do some brief shopping, he does not travel anywhere unless absolutely necessary and then he tries to go with someone, such as his son.  His son Valon gave evidence that he either drives the Applicant or gets a friend to drive him to medical appointments.  He said that he arranged for a member of the Albanian community to accompany the Applicant whenever he travelled to Kosovo to visit his other son, and that his brother looked after the Applicant while he was in Kosovo.  Dr Hogan gave evidence that he would be surprised if the Applicant could travel overseas alone but it would not be too difficult if he had someone to accompany him.

    [24] Exhibit A2

18. The Applicant also gave evidence that on a return flight from Singapore to Melbourne he became agitated, nervous, frightened and panicked and when he failed to respond to treatment on the plane, the flight was diverted to Bali where he was hospitalised.

19. I am satisfied on this evidence that the Applicant’s condition at the cancellation date satisfied the severe level for this descriptor.

    Interpersonal relationships

20. The examples of severe functional impact given under this heading in Table 5 are that the person has limited social contact and involvement unless these are organised for the person and that the person often has difficulty interacting with other people.

21. A JCA Report prepared in September 2005 indicated that the Applicant was unable to handle community interaction[25].

    [25] PT9 at page 45

22. The Applicant gave evidence that by November 2015 his relationship with his wife had broken down and they had divorced.  Although he continued to live under the same roof as his wife in their son’s house they were estranged and lived independent from each other in separate bedrooms. The Applicant’s son Valon gave evidence that the Applicant rarely leaves his room or the house in which he lives.  The Applicant said in his statement[26] that he is uncomfortable leaving the house by himself and that the Applicant spends most of his days in bed.

    [26] Exhibit A2 at [12]

23. Dr Nallaratnam reported in July 2016 that the Applicant claimed he was anxious and frightened of people and that he had no friends and does not attend the mosque[27].  Dr Hogan noted in his evidence that the Applicant was withdrawn and had very poor quality of life.

    [27] T16 at page 76

24. On the basis of this evidence I am satisfied that the Applicant’s condition at the cancellation date satisfied the severe level for this descriptor.

    Work/training capacity

25. The Respondent accepts that there is a severe impairment under this descriptor but makes no submission regarding the extreme level.  The example of a severe impairment given in Table 5 is that:

    The person is unable to attend work, education or training on a regular basis over a lengthy period ... 

    The example given for an extreme impairment is that:

    The person is unable to attend work, education or training sessions other than for short periods of time. 

    The distinction between the levels for this descriptor is not easily discerned.  If a person is unable to attend on a regular basis over a lengthy period (severe) then attendance for only short periods (extreme) would seem to be a necessary corollary.

26. The evidence indicates that the Applicant’s impairment actually exceeds the example given for the extreme level for this descriptor and indicates that he is incapable of attending for work, education or training at all. The evidence shows that the Applicant has had a long standing incapacity.  He was in receipt of the DSP from 2005 until it was cancelled on 30 November 2016.  He did not work at all during this time.  His treating doctor’s reports of June 2005[28] and July 2005[29] indicate that he was not able to sustain meaningful employment.  A medical review report of 30 January 2008 noted that the Applicant had no will to live/work[30].  Dr Nallaratnam reported in July 2016 that the Applicant was totally indolent and could not hold down a job[31].  Dr Bosanac noted in his report of July 2016 that the Applicant was unable to maintain meaningful employment[32].  Dr Hogan reported in September 2017 that he believes the Applicant has been quite incapable of any employment since the war and his development of psychiatric illness.  Dr Hogan went on to say that he believes there is no prospect of the Applicant having his symptoms ameliorated in the future to a degree that would permit any employment[33].

    [28] PT6 at page 20

    [29] PT8 at page 35

    [30] T10 at page 53

    [31] T16 at page 76

    [32] PT18 at page 85

    [33] Exhibit A2

27. On the basis of this evidence I am satisfied that the Applicant’s condition at the cancellation date at least satisfied the severe level for this descriptor.

28. Based on these findings I find that the Applicant’s condition has a severe functional impact on activities involving mental health function and it attracts an assessment of 20 points under Table 5 of the Impairment Tables.[34]

    [34] This rating is consistent with the conclusion of the Job Capacity Assessment made in 8 April 2008 – PT 11 at page 67

29. The final consideration is whether the Applicant has a continuing inability to work as defined in s.94(2) of the Act.

30. In the case of a person with a severe impairment the decision-maker must be satisfied that either:

    a.the impairment is of itself sufficient to prevent the person from undertaking any work independently of a program of support within the next two years; and either

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

31. “Work” in this context is defined in s.94(5) as work of at least 15 hours per week on wages that are at or above the relevant minimum wage.

32. The assessment of this criterion is to be made by reference to the two years subsequent to the cancellation date.  In this regard I give considerable weight to the evidence of Dr Hogan.  In his report dated September 2017 he stated that there is no prospect of the Applicant having his symptoms ameliorated in the future to a degree that would permit any employment.  His oral evidence of 30 April 2018 confirmed this opinion. Dr Hogan’s opinion, being contemporaneous with the relevant two year period, provides compelling evidence that the Applicant’s impairment would prevent him undertaking work or training activity during the two year period after the cancellation date.

33. The only assessment which would suggest that the Applicant is capable of undertaking work or training is the JCA report of 14 September 2016.  This report was prepared without the benefit of Dr Hogan’s later assessment.  For this reason, and for reasons already discussed I give this report little weight.  Having regard to the severity of the Applicant’s impairment, the assessment of Dr Hogan and the absence of any contrary medical evidence I find that the Applicant satisfies the criterion in s.94(2) and has a continuing inability to work as required by s.94(1)(c)(i) of the Act.

34. For these reasons I am not satisfied that, at 30 November 2016, the Applicant was not qualified for the payment of a DSP.  Accordingly I have decided that the decision to cancel his DSP should be set aside. 

    DECISION

35. The decision to cancel the applicant’s disability support pension under s.80(1) of the Social Security (Administration) Act 1999  is set aside.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Mr Richard West, Member

...........................[sgd].............................................

Associate

Dated: 19 July 2018

Date of hearing:	30 April 2018
Solicitor for the Applicant:	Mr Tim Noonan, Victorian Legal Aid
Solicitor for the Respondent:	Mr Pietro Nacian, Sparke Helmore Lawyers