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

[2016] AATA 236

Lowe and Secretary, Department of Social Services (Social services second review) [2016] AATA 236 (14 April 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4043
Re	Callum Lowe
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	14 April 2016
Place	Brisbane

The decision under review is affirmed

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

Senior Member A C Cotter

CATCHWORDS

Disability Support Pension – cancellation – intellectual impairment – mental health function – whether condition permanent – whether fully diagnosed – whether fully treated – whether fully stabilised – where condition not fully diagnosed at date of cancellation – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94
Social Security (Administration) Act 1999 (Cth) ss 27, 63, 80
Social Security (Tables for the Assessment of Work-related impairment for Disability Support Pension) Determination 2011 (Cth)

CASES

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Natalizi and Secretary, Department of Social Services [2014] AATA 803
Shi v Migration Agents Registration Authority (2008) 235 CLR 286

REASONS FOR DECISION

Senior Member A C Cotter

1. Mr Callum Lowe is 21 years of age. He was first granted the Disability Support Pension (“DSP”) in July 2010 in respect of his Attention Deficit Disorder and intellectual disability. At the time, he was assessed as having a baseline work capacity of zero to seven hours per week.[1]

   [1] Exhibit 1, T Documents, T 8, pages 74-75 and 76, Job Capacity Assessment report dated 27 August 2010.

2. In December 2011, the Minister made the Social Security (Tables for the Assessment of Work-related impairment for Disability Support Pension) Determination 2011 (Cth) (“2011 Determination”) under s 26 of the Social Security Act 1991 (Cth) (“Act”). That determination introduced new tables for the assessment of work-related impairment for the purposes of DSP.

3. In January 2012,[2] and January 2014,[3] Employment Services Assessments of Mr Lowe were conducted. Both concluded that Mr Lowe’s work capacity had increased to more than eight hours per week since he was first granted DSP.

   [2] Exhibit 1, T Documents, T 9, pages 83-84, Employment Services Assessment report dated 11 January 2012.

   [3] Exhibit 1, T Documents, T 9, page 91, Employment Services Assessment report dated 24 January 2014.

4. In October 2014, the Department commenced a medical review of Mr Lowe’s DSP.[4]

   [4] Exhibit 1, T Documents, T 10, pages 95-108, Medical Review DSP forms dated 3 October 2014.

5. The review form completed by Mr Lowe listed his disabilities as: Anxiety, Depression, Attention Deficit Hyperactivity Disorder (“ADHD”), and Insomnia.[5]

   [5] Exhibit 1, T Documents, T 10, page 96, Mr Lowe’s Medical Review DSP form dated 12 November 2014.

6. The report completed by Mr Lowe’s general practitioner, Dr Wayne Norval, identified Generalised Anxiety Disorder and Major Depressive episode as the conditions having the most impact on Mr Lowe’s ability to function. Dr Norval also listed ADHD and Insomnia as conditions from which Mr Lowe suffered, but which were generally well managed and which caused minimal or limited impact on his ability to function.[6]

   [6] Exhibit 1, T Documents, T 10, pages 99-108, Medical Review DSP report of Dr Wayne Norval dated 12 November 2014.

7. Mr Lowe subsequently attended an assessment by a Job Capacity Assessor (“JCA”) in December 2014. The assessor considered that the Anxiety and Depression conditions could not attract impairment ratings because they were not fully treated and stabilised. That was because Mr Lowe had not been treated pharmacologically for a year or two and had no current psychological or psychiatric interventions. As to Mr Lowe’s intellectual impairment, the assessor was unable to assign any impairment points because Mr Lowe had failed to attend two scheduled appointments at which testing for the purpose of the assessment was to have been conducted.[7]

   [7] Exhibit 1, T Documents, T 11, pages 109-115, JCA report dated 2 April 2015.

8. On 15 April 2015, the Department wrote to Mr Lowe, advising him that it had decided to cancel his DSP because he was assessed as having an impairment rating of less than 20 points.[8]

   [8] Exhibit 1, T Documents, T 13, pages 118-119, Department’s letter to Mr Lowe dated 15 April 2015.

9. A review by an Authorised Review Officer,[9] and a subsequent first tier review by the Social Services & Child Support Division of this Tribunal (“SSCSD”),[10] both affirmed the decision to cancel Mr Lowe’s DSP. Dissatisfied with that outcome, Mr Lowe has applied to the General Division of this Tribunal for a review of the SSCSD’s decision.

   [9] Exhibit 1, T Documents, T 17, pages 142-146, Authorised Review Officer’s decision dated 22 April 2015.

   [10] Exhibit 1, T Documents, T 2, pages 3-7, SSCSD’s decision and reasons for decision dated 23 July 2015.

10. Before I consider the issues raised by this application, it is timely to reflect briefly on the relevant legislative provisions.

    THE LEGISLATIVE FRAMEWORK

11. Under s 80 of the Social Security (Administration) Act 1999 (Cth)(“Administration Act”), if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for that payment, the Secretary is to determine that the payment be cancelled. The question of whether the person is qualified or not is to be determined as at the day on which the cancellation occurs.[11] In this case, that is 15 April 2015. It is irrelevant that a person may later again fulfil the requirements for a grant.[12]

    [11] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

    [12] See Freeman v Secretary, Department of Social Security (1988) 19 FCR 342, 345 (Davies J).

12. Section 94 of the Act prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are: that the person has a physical, intellectual or psychiatric impairment; that the person’s impairment is of 20 points or more under the Impairment Tables; and that the person has a continuing inability to work.

13. The documents relating to the medical review of Mr Lowe’s DSP constituted a notice under s 63(2) of the Administration Act.[13] Under s 27(3) of the Administration Act, if a person is receiving DSP and receives a notice under s 63(2), the Secretary, in assessing their qualification for that pension, must apply the Impairment Tables in force at the time the notice is given.[14] At that time (3 October 2014), the Impairment Tables in force were those made under the 2011 Determination. 

    [13] Exhibit 1, T Documents, T 10, pages 95-98, Medical Review DSP forms dated 3 October 2014.

    [14] See also Natalizi and Secretary, Department of Social Services [2014] AATA 803, [3] (Senior Member Taylor).

14. The Tables are function based, rather than diagnostic based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.

15. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the 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.[15] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[16]

    [15] See Social Security (Tables for the Assessment of Work-related impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3).

    [16] See Ibid s 6(4).

    ISSUE FOR THE TRIBUNAL

16. There is no doubt that Mr Lowe suffers from psychiatric and intellectual impairments.

17. Therefore, the central issue which falls for my consideration in determining whether Mr Lowe remained qualified for DSP on 15 April 2015 (being the date of cancellation), is whether his impairments attracted 20 points or more under the Impairment Tables contained in the 2011 Determination. If they did, it is then necessary to also consider whether he had a continuing inability to work. I deal with those issues below.

    CONSIDERATION

    Did Mr Lowe have 20 points or more under the Impairment Tables?

18. I deal below with the question of how many impairment points (if any) should have been assigned to Mr Lowe’s impairments at the relevant time.

    Anxiety and Depression

19. As mentioned earlier, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent”, in the sense that it is fully diagnosed by an appropriately qualified medical practitioner, fully treated, and fully stabilised.

    Fully diagnosed?

20. Table 5 is the table applicable to mental health function. The Introduction to that table requires the diagnosis of a condition to be made by an appropriately qualified medical practitioner (including a psychiatrist), with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.

21. While Dr Norval provided a diagnosis of Generalised Anxiety Disorder and Major Depressive episode, there is no evidence of that diagnosis having been confirmed at the time by either a clinical psychologist or a psychiatrist. Admittedly, in his medical report, Dr Norval did tick the relevant boxes for both conditions, indicating that the diagnoses had been confirmed, but did not say by whom. The only reference to a psychiatrist was to a Dr Gilbert, whom Mr Lowe was to see in a couple of months’ time, in January 2015.

22. Consistent with Dr Norval’s report, Mr Lowe told the JCA in December 2014 that he had not seen a psychiatrist in the past, but that Dr Norval had referred him to a psychiatrist, Dr Gilbert, whom he was to see in January 2015.[17] Mr Lowe’s father (“Mr Lowe Senior”) confirmed at the hearing before the SSCSD that his son had attended that appointment and had two further sessions since that time; the sessions tended to be every month, depending on the doctor’s availability.[18] Despite the referral to Dr Gilbert and at least three consultations with him, there is no material before the Tribunal which confirmed his diagnosis (if any).

    [17] Exhibit 1, T Documents, T 11, page 110, JCA report dated 2 April 2015.

    [18] Exhibit 1, T Documents, T 2, page 5, decision and reasons for decision of SSCSD dated 23 July 2015, paragraph [8].

23. Mr Lowe Senior, who appeared on behalf of his son at the hearing before me, produced a report by another psychiatrist, Dr Scott Jenkins, dated 4 March 2016. Mr Lowe Senior explained that his son had not felt comfortable with Dr Gilbert, and so started seeing Dr Jenkins. Dr Jenkins stated that Mr Lowe had “confirmed diagnoses” of the following conditions, although he did not say when and by whom those diagnoses had been made or confirmed: Attention Deficit Disorder; Oppositional Defiance Disorder; Autistic Spectrum Disorder (Aspergers type); Gender Identity Disorder; Anxiety Disorder; and Borderline Personality Disorder.[19] The difficulty with Dr Jenkins’ report is that it was based on an assessment conducted by him on 2 March 2016, almost 11 months after the relevant date for assessment in this case. As I understand that Dr Jenkins has only recently commenced seeing Mr Lowe, it would be difficult, if not impossible, for him to confirm a diagnosis as at a particular date some considerable time earlier. In any event, his report does not purport to express an assessment as at the relevant date. While Dr Jenkins’ report would undoubtedly be of assistance in respect of any new claim lodged by Mr Lowe, I do not consider it is of assistance in this instance, having regard to the date to which I am to have reference.

    [19] Exhibit 4, Report of Dr Scott M Jenkins dated 4 March 2016.

24. I should add that, after adjourning the hearing and reserving my decision, the Registry received an unsolicited email from Mr Lowe, attaching a further letter from Dr Jenkins dated 18 March 2016.[20] The covering email states that the letter outlines “that my conditions were present during January 2015”. Dr Jenkins reiterates in his letter that he saw Mr Lowe on 2 March 2016 and that he “clearly has” a number of conditions, which were listed in his 4 March letter. I read that comment by Dr Jenkins as confirming his diagnosis as at 2 March 2016, some considerable time after the relevant date. My comments on Dr Jenkins’ 4 March letter are equally apposite to the first two paragraphs of his later letter. Dr Jenkins then goes on to note that Mr Lowe saw Mr Nembach in the first instance, which “suggests that his conditions were clearly present in January 2015”.[21]  The difficulty is that there is no supporting medical evidence that Mr Lowe was suffering from each of the listed conditions at the relevant time. Dr Jenkins does not refer to any evidence in that regard. As best as I can determine from his letter, his conclusion is based purely on supposition. I therefore do not think that Dr Jenkins’ further letter advances the matter.

    [20] Email from Mr Callum Lowe to Brisbane Registry of the Tribunal dated 24 March 2016, attaching letter from Dr Scott Jenkins dated 18 March 2016.

    [21] (Emphasis added).

25. For completeness, I note that Mr Callum Lowe told the JCA that he had previously seen Dr Margaret Judd, a clinical psychologist, for “a few sessions” but had ceased seeing her.[22] Although the JCA notes that Dr Judd confirmed the diagnoses of Generalised Anxiety Disorder and Depression,[23] there is no other evidence of any such diagnoses having been made; nor is there any indication as to the source of the JCA’s information. Another psychologist, Mr Rodney Nembach, undertook a psychological assessment in August 2010. On the basis of Mr Lowe’s reported history, symptomatology, level of functioning and test results, Mr Nembach thought Mr Lowe “may be experiencing” Asperger’s Disorder and ADHD, Combined Type.[24] At its highest (and most generous), that would be a presumptive diagnosis. In any event, it addresses different conditions to those identified by Dr Norval as being significant at about the date of cancellation.[25] Further, I understand from the Secretary’s submissions that Mr Nembach is not registered as a clinical psychologist. Having regard to those various considerations, I am not satisfied that confirmatory diagnoses were provided by either Dr Judd or Mr Nembach, as required by the Introduction to Table 5.

    [22] Exhibit 1, T Documents, T 11, page 110, JCA report dated 2 April 2015.

    [23] Ibid, pages 109 and 110; (Emphasis added).

    [24] Exhibit 1, T Documents, T 7, page 69, psychological assessment by Mr Rodney Nembach dated 23 August 2010.

    [25] Asperger’s Disorder was not diagnosed by Dr Norval at all and ADHD was considered by him to be generally well managed and having limited or minimal functional impact.

26. Based on the above, I do not believe that Mr Lowe’s condition was fully diagnosed at the relevant time, either by a psychiatrist or by a clinical psychologist.

    Fully treated and stabilised?

27. I also have doubts as to whether Mr Lowe’s condition could be said to have been fully treated and fully stabilised at the relevant time. There is little evidence before the Tribunal regarding appropriate pharmacological treatment or interventions by a psychologist or psychiatrist at the relevant time.

28. Mr Lowe told the JCA in December 2014 that he had not been treated with medication for his conditions “for a year or two”, even though he said that he still had “a lot of issues”. At about that time, Dr Norval was to commence him on anti-depressant medication;[26] the Patient Health Summary confirms the anti-depressant, Efexor, having been prescribed for Mr Lowe in January, February and April 2015.[27] Mr Lowe’s father told the SSCSD hearing that when his son saw Dr Gilbert, the doctor did not immediately prescribe medication because he wanted to first fully understand Mr Lowe’s medical history.  Mr Lowe Senior told the SSCSD that his son had been prescribed another anti-depressant, Zoloft, about a week before that hearing,  Mr Lowe  having stopped taking Efexor about a month prior following an adverse reaction. Mr Lowe Senior also confirmed that before being prescribed Efexor, his son had not taken medication for some years.[28] However, both he and his son told the SSCSD that the latter experienced a “marked improvement” when he took his medication.[29]

    [26] Exhibit 1, T Documents, T 11, page 110, JCA report dated 2 April 2015.

    [27] Exhibit 1, T Documents, T 20, page 153, Mr Lowe’s Patient Health Summary (Family First Medical Centre, Hervey Bay).

    [28] Exhibit 1, T Documents, T 2, page 5, SSCSD’s decision and reasons for decision dated 23 July 2015, paragraph [8].

    [29] Ibid Page 6, paragraph [9].

29. There is also little evidence of Mr Lowe having been treated by a psychologist or psychiatrist in the immediate lead up to the cancellation of DSP. He had stopped seeing the psychologist, Dr Judd, some time earlier, and only commenced seeing Dr Gilbert, the psychiatrist, in January 2015. I note that he also subsequently commenced seeing a psychologist, Ms Maria Humberdross, who recommended that he continue his psychotherapy to “manage his severe symptoms and develop adaptive ways in dealing with crisis.”[30]  However, it seems that psychological intervention came after the relevant date.

    [30] Exhibit 1, T Documents, T 19, page 148, report of Ms Maria Humberdross dated 2 July 2015.

30. It appears that as at the date of cancellation, Mr Lowe’s treatment was in its early stages. In those circumstances, I do not think that Mr Lowe’s condition could be considered fully treated and stabilised at that date.

31. As Mr Lowe’s condition was not fully diagnosed, treated and stabilised at the relevant time, I am unable to assign any impairment points in respect of his psychiatric impairment.

    Intellectual impairment

32. The relevant table in respect of this impairment is Table 9, it being used where the person has a permanent condition resulting in low intellectual function (IQ score of 70 to 85) resulting in functional impairment.

33. The Introduction to the table requires an assessment of intellectual function to be undertaken in the form of a Wechsler Adult Intelligence Scale IV (WAIS IV) or equivalent contemporary assessment.

34. An assessment of adaptive behaviour is also to be undertaken in the form of either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour-Revised (SIB-R), the Vineland Adaptive Behaviour Scales (Vineland-II) or any other standardised assessment of behaviour meeting the requirements set out in the table.

35. Mr Lowe undertook an assessment on the Wechsler Intelligence Scale for Children (WISC) when he was 16 years old. Now that he is over 18 years old, the results of that test can no longer be applied for the purpose of the table. Therefore, before Mr Lowe could be assessed under this table, he had to undertake an assessment under WAIS IV or its equivalent. Prior to the date of cancellation, Mr Lowe failed to attend two scheduled appointments for that assessment to be undertaken.[31]

    [31] Exhibit 1, T Documents, T 11, page 113, JCA report dated 2 April 2015; See also Introduction to Table 9 (Intellectual Function).

36. At the hearing before me, Mr Lowe Senior produced a report of testing undertaken earlier in March 2016 by the psychologist, Mr Nembach. Testing in accordance with WAIS-IV confirmed Mr Callum Lowe’s IQ as 73. An assessment under the Adaptive Behaviour Assessment System-Third Edition (ABAS-3) produced a general adaptive composite score of 78.[32]

    [32] Exhibit 5, report of Mr Rodney Nembach dated 14 March 2016.

37. After obtaining instructions, the Secretary’s lawyer submitted that although the ABAS-3 scale is not specifically mentioned in Table 9, it would nevertheless be considered a standardised assessment of behaviour which meets the table’s requirements. On that basis, it was conceded by the Secretary that Mr Lowe suffers a moderate impact on intellectual function, attracting 10 points under that table.

1. I sought a response from Mr Lowe Senior, who asserted that the scores did not properly reflect his son’s level of intellectual impairment.

2. Although I appreciate Mr Lowe Senior’s assertion, I am nonetheless required to consider the assignment of impairment points by reference to the prescribed table. On that basis, it seems to me clear that Mr Lowe meets the descriptor in point (1)(a) of the table for moderate functional impact; he was assessed as having a score of adaptive behaviour of between 71 and 79 on the appropriate scale.

3. I therefore find that Mr Lowe suffered from a moderate impact on intellectual function. Accordingly, 10 points should be assigned in respect of that impairment.

   Other conditions

4. Dr Norval’s report also listed the conditions ADHD and Insomnia, but described them as being generally well managed and conditions that caused minimal or limited impact on Mr Lowe’s ability to function.[33]

   [33] Exhibit 1, T Documents, T10, page 107, medical report of Dr Wayne Norval dated 12 November 2014.

5. As regards ADHD, Mr Lowe confirmed to the JCA that the condition was chronic, well managed and had minimal impact on his ability to function.[34]

   [34] Exhibit 1, T Documents, T 11, page 111, JCA report dated 2 April 2015.

6. Similarly, with respect to the Insomnia, Mr Lowe told the JCA that this condition was chronic, well managed and had minimal impact on function.[35]

   [35] Ibid.

7. In light of Dr Norval’s assessment and Mr Lowe’s confirmation, I consider that no points should be assigned in respect of either of those conditions.

   Impairment points – summary

8. To summarise, I consider that as at the date of cancellation, Mr Lowe had 10 impairment points. In those circumstances, I do not believe that he qualified for DSP at that date, since he was unable to satisfy the requirement in s 94(1)(b) of the Act.

   Continuing inability to work

9. In light of the conclusion I have reached as to Mr Lowe’s total impairment rating, it is unnecessary for me to consider the issue of whether he had a continuing inability to work and so satisfied the requirements of s 94(1)(c) of the Act.

   CONCLUSION

10. At the time of cancellation of his DSP, I do not consider that Mr Lowe had 20 impairment points or more under the relevant tables. Consequently, he did not qualify for DSP at that date.

11. I appreciate that Mr Lowe and his family will find this decision both disappointing and frustrating. However, I am required to apply the legislation and instruments as they are drafted. Although I understand Mr Lowe Senior’s contention that the tables do not properly reflect his son’s impairments, it must be remembered that the 2011 Determination and the tables it introduced were aimed at achieving a uniform and equitable approach to impairments arising from a multitude of diverse claims and circumstances.

12. That said, Mr Lowe and his father should not be disheartened by their lack of success on this application. Given the significant developments that have occurred since the date of cancellation, they should not be discouraged from making a fresh claim, now that they have, or can access, the necessary information and material.

13. The decision under review is therefore affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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

Associate

Dated 14 April 2016

Date(s) of hearing

Advocate for the Applicant

Solicitors for the Respondent

15/03/2016

Mr Michael Lowe, by phone

Department of Human Services