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

[2020] AATA 1366

Lonie; Secretary, Department of Social Services and (Social services second review) [2020] AATA 1366 (22 April 2020)

Division:GENERAL DIVISION

File Number:               2019/4224

Re:Secretary, Department of Social Services

APPLICANT

AndTyler Lonie

RESPONDENT

DECISION

Tribunal:Senior Member P E Nolan

Date:22 April 2020

Date of written reasons:        19 May 2020

Place:Brisbane

The decision under review is set aside and in substitution it is decided that the Respondent does not qualify for Disability Support Pension because his psychiatric condition was not fully treated or fully stabilised during the qualification period.

...........[SGD].............................

Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether conditions were fully diagnosed, treated and stabilised during the relevant period – decision under review set aside – in substitution it is decided that the respondent does not qualify for disability support pension

LEGISLATION

Social Security Act 1991 (Cth)

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

REASONS FOR DECISION

Senior Member P E Nolan

Date of written reasons:      19 May 2020

INTRODUCTION

1. This is an application on behalf of the Secretary, Department of Social Services to review a Decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 Decision was handed down on 11 June 2019. In essence, the matter was remitted back to the then Respondent to have a number of matters reviewed and this has since been done.

2. Given this is a de novo hearing, and as has been explained to me and submitted during the opening of this proceeding, the role that I play here is to look at the matter afresh. This is not like a traditional appellant court where I would be looking for errors of law and overturning a decision, or in some cases, in some criminal matters where they can re‑decide it. 

   CONSIDERATION

3. I have looked at all the material available, I have listened to the cross‑examination, and I have been particularly interested in listening to the Respondent, Mr Lonie.

4. There is no dispute here about the fact that Mr Lonie has impairments, and he has two of them. The critical one is the psychiatric impairment.

   Fibromyalgia Condition

5. To dispose very quickly of the first one, it is described as Fibromyalgia. There is no doubt that it is a serious condition. Listening to the evidence available and reading the evidence as related in AAT1 - it is not something you would wish on anybody. I have no doubt that the diagnosis is actually correct and that the finding that Mr Lonie’s condition came within the 10 point range is quite correct.[1] 

   [1] Impairment table 1 – Functions Requiring Physical Exertion and Stamina, Part 3 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’)

6. Dr Phillip Vecchio, Rheumatologist, testified at the Hearing. There is also a report from him before the Tribunal.[2] It is clear from the report he looked as carefully as he could to help Mr Lonie and concluded in his report that Mr Lonie did not meet the criteria for the 20 points in table one, but certainly met the criteria for the 10 points in table one.[3]   

   [2] Exhibit 8, Medical Report of Dr Vecchio dated 19 February 2020.

   [3] Impairment Table 1 - Functions Requiring Physical Exertion and Stamina, Part 3 of the Determination.

7. So to that extent that issue is settled, that is, that there is clearly an impairment.[4] It has been fully diagnosed, fully treated, fully stabilised[5], and not that this is really needed, but there was a continuing inability to work.[6]

   [4] Section 94(1)(a) of the Social Security Act 1991 (Cth).

   [5] Section 6(4) of the Determination.

   [6] Section 94(1)(c) of the Social Security Act 1991 (Cth).

   Psychiatric Condition

8. The issue for this Tribunal concerns the psychiatric or psychological disability, and whether it has been fully treated and fully stabilised. The psychiatric condition is where Mr Lonie’s claim falls short. The evidence contained in the material that I have, and it was brought out in the cross‑examination and I will go into that in a moment, makes it clear that Mr Lonie has been told on a number of occasions by different medical practitioners that he has a psychiatric condition.  It is also clear that he saw a psychiatrist in the course of getting some treatment.  

9. It is equally clear to this Tribunal that despite the advice that he was given by various doctors, Mr Lonie has refused to follow that advice or take the medication that the psychiatrist had wanted him to. The psychiatrist was Dr Randhawa.  That is Mr Lonie’s right, and I do not for one moment criticise him for being his own man when it comes to what he thinks is the best treatment for himself.  The problem is though that without following that doctor’s advice, I am unable to turn around and give him the Disability Support Pension (DSP). To give Mr Lonie the DSP, I have to be convinced on the evidence before me that the diagnosis of the psychiatric impairment has been fully treated and fully stabilised, and the fact of the matter is it that it has not been fully treated and fully stabilised.[7] 

   [7] Section 6(4) of the Determination.

10. The cross-examination through the Hearing really centred on a number of occasions where Mr Lonie got advice from different practitioners. They are found in exhibit 10 – which are the section 196 documents which were recently given to the Tribunal at pages 51, 103, 129 and 204. I am not going to go through them all, because what emerges is a pattern that, in summary, Mr Lonie is not interested in following the advice that psychiatrists give him regarding prescribing medication for him to take. 

11. Mr Lonie claims, and he may be right for all I know, that there is better medication for him than what they want. He also maintains, that he is not getting the maximum usage out of the psychiatrist’s advice to him or the treatment they are recommending him. That may be right, as I said, but the problem is, if you want to go down that path on your own, then the price you pay for it is you do not qualify for the DSP. 

12. The Tribunal found that there is insufficient evidence, in fact there is really no evidence, to show that the psychiatric impairment has been fully treated or fully stabilised, and as such, the Tribunal found that this was the end of the matter. The fact that there is a continuing inability to work is irrelevant for the purposes of this exercise. 

    DECISION

13. In all the circumstances, I set aside the decision of AAT1 and substitute this decision for it. 

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of

Senior Member P E Nolan

...................[SGD]...........................

Associate

Dated: 19 May 2020

Date of hearing:	22 April 2020
Applicant:	Secretary, Department of Social Services
Solicitors for the Applicant:	Mr Ashley Burgess, Lawyer Sparke Helmore
Respondent:	Mr Tyler Lonie