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

McGann and Secretary, Department of Social Services (Social services second review) [2015] AATA 823 (27 October 2015)

Division

GENERAL DIVISION

File Numbers

2013/6066 and 2014/5779

Re

David McGann

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Ms G Ettinger, Senior Member

Date 27 October 2015

Place Sydney
The Tribunal affirms the decision of the SSAT in Matter 2014/5779.
The Tribunal affirms the decision of the SSAT in Matter 2013/6066.
........................................................................
Ms G Ettinger, Senior Member
CATCHWORDS
Social Security - pensions - disability support pension - reviewable decisions of SSAT in 2013 and 2014 - Applicant suffers depression and anxiety – whether fully diagnosed, treated and stabilised – impairment points awarded in both applications - other conditions being carpal tunnel syndrome, hernia, plantar faciitis, hypertension - in Matter 2013/6066 the Applicant’s fibromyalgia attracted 10 impairment points – whether continuing inability to work - decision of 2013 affirmed - decision of 2014 affirmed.
LEGISLATION
Social Security Act 1991(Cth) s 94
Social Security (Administration) Act 1999 (Cth) Schedule 2 clause 4(1), s 152
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Re Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
Secretary, Department of Social Security v Pusnjak [1999] FCA 994
SECONDARY MATERIALS
Guide to the Impairment Tables
Social Security Act 1991, Schedule 1B - Tables for the assessment of work-related impairment for disability support pension (the old Impairment Tables)
Social Security (Requirements and Guidelines - Active Participation for
Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms G Ettinger, Senior Member
27 October 2015
SUMMARY

Mr David McGann, aged 41, who suffers Depression and Anxiety, Fibromyalgia, and a number of other lesser conditions, is the Applicant in two matters before the Tribunal.
In Matter 2014/5779 Mr McGann seeks review of a decision of the Social Security Appeals Tribunal (SSAT) dated 30 May 2014 which affirmed the decision of the Department of Human Services, (the Department), to reject his claim for Disability Support Pension (DSP). In Matter 2014/5779, the date of Mr McGann’s application for DSP was 26 September 2011, with the relevant period for the claim ending 13 weeks later, on 25 December 2011.
The SSAT accepted that Mr McGann satisfied the requirements of section 94(1)(a) of the Act in that he suffered Depression during the relevant period. However, the SSAT held that his impairments attracted only 10 impairment points, and that he could not therefore satisfy the requirements of section 94(1)(b) of the Act. Accordingly, he could not satisfy the requirements of section 94(1)(c) of the Act, either.
In Matter 2013/6066 Mr McGann seeks review of the decision of the SSAT dated 12 September 2013 which affirmed the decision of the Department, to reject his claim for DSP. In Matter 2013/6066, the date of Mr McGann’s application for DSP was 4 October 2012 with the relevant period ending 13 weeks later, on 2 January 2013. The period to be taken account in each case commences at the date of Mr McGann’s application, and ends 13 weeks later.
In Matter 2013/6066, the Department held that during the relevant period Mr McGann satisfied the requirements of section 94(1)(a) of the Act, in that he suffered a physical and psychiatric impairment. The Department also held that his impairments attracted an impairment rating of at least 20 points in satisfaction of section 94(1)(b) of the Act.
However on appeal to the SSAT, the Tribunal found that Mr McGann had a total of 15 impairment points, (5 points for his mental health condition, and 10 points for his Fibromyalgia). The SSAT found that he accordingly did not satisfy the requirements of section 94(1)(b) of the Act. The SSAT also held that Mr McGann did not actively participate in a Program of Support (PoS) as required by the Activity Participation Determination, and that accordingly he could not be held to have a continuing inability to work during the relevant period, 4 October 2012 – 2 January 2013.
Mr McGann represented himself at this Tribunal, and gave oral evidence. The Respondent (the Secretary), was represented by Mr S Davidson, Government Lawyer. Dr K Henson who is a Psychiatrist, and has been treating Mr McGann for Depression and Anxiety since 2007, provided a number of reports and medical certificates. Dr Henson also gave oral evidence by telephone.
Whilst I acknowledge that Mr McGann has suffered a number of illnesses and some difficulties in his life, the evidence satisfies me that in relation to the applications before the Tribunal, Mr McGann does not meet the tests for the award of DSP in the two relevant periods pursuant to section 94 of the Social Security Act 1991 (the Act). Accordingly the decisions under review must be affirmed. My reasons follow.
I note for the sake of completeness only, that on 30 September 2014, Mr McGann’s third claim for DSP was granted by the Department with effect from that date.
LEGISLATIVE ENVIRONMENT
The relevant legislation is the Social Security Act 1991(Cth), and the Social Security (Administration) Act 1999 (Cth) (Administration Act).
In accordance with clause 4(1) of Schedule 2 of the Administration Act, the Tribunal is required to determine Mr McGann’s qualification for DSP on each occasion on the date he made his claim, and for the following 13 weeks.
Section 94 of the Act sets out the qualifications for DSP as follows:
Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
….
Continuing inability to work
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--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.
…
Taking into account the requirements of section 94(1) of the Act, the Tribunal must determine whether Mr McGann was qualified or became qualified to receive DSP in the relevant period from the date of his application, and for the 13 weeks following. It must decide whether Mr McGann’s impairments were permanent in that period, whether they attracted an impairment rating of at least 20 points, and if so, whether the Applicant had a continuing inability to work.
In conducting this review, I am required to consider two relevant periods. They are:
·26 September 2011 - 25 December 2011 in Matter 2014/5779, and
·4 October 2012 - 2 January 2013 in Matter 2013/6066.
In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, which has been followed in other cases, the Tribunal stated at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised 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.
I have noted the following in connection with the assignment of an impairment rating:
(a)The Introduction to the old Impairment Tables contain the rules for applying the Impairment Tables when deciding if a person is qualified for DSP. The old Impairment Tables are designed to be impairment (function)-based rather than condition (diagnosis)-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairments.
(b)Impairment for the purposes of the tables, means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition. The Tables give particular emphasis to the loss of a person’s functional capacity in comparison with a fully able person. Generally, the more a person’s impairment affects their ability to do work-related tasks, the higher the impairment rating that will be assigned.
(c)The notes to the Impairment Tables state that to be assigned an impairment rating a condition must be permanent, that is, it must be diagnosed, treated and stabilised, with all reasonable treatment having been trialled. Until the effect of that treatment is known, a condition cannot be considered permanent, and cannot be assigned an impairment rating.
Chapter 1, Section J of the Guide to the Impairment Tables relevantly provides:
3. Choice of ratings within a particular table:
If an impairment level appears to fall between two rating levels described within a table, the general approach is to choose the lower of the two ratings. The higher rating level should not be assigned unless the entire impairment descriptor at that level has been fully satisfied.
Depression
Table 6 is used for permanent psychiatric disorders only. The descriptors for Table 6 - Psychiatric Impairment provide:
TABLE 6. PSYCHIATRIC IMPAIRMENT
…
NIL Mild but regular symptoms which tend to cause subjective distress. On most occasions able to distract themselves from this distress. Minimal interference with function in everyday situations. Exacerbation of symptoms may cause occasional days off work. (eg. There may be some loss of interest in activities previously enjoyed. There may be occasional friction with family, colleagues or friends) Medical therapy or some supportive treatment from treating doctor may be required.
TEN Moderate and regular symptoms and generally functioning with some difficulty. (eg. noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work. (eg. short periods of absence from work).
TWENTY Psychiatric illness or disorder with either serious symptomatology OR impairment in functioning that requires treatment by a psychiatrist (eg. frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms). There is significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work.
Program of Support
I am mindful that pursuant to subsection 94(2)(aa) of the Act, where a person has not been assigned 20 points under a single impairment table, and does not therefore have a severe impairment (as defined in subsection 94(3B)), the person will be required to have actively participated in a program of support. If they have not done so, they cannot be found to have a continuing inability to work.
The term ‘program of support’ is defined in subsection 94(5) of the Act 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.
In deciding whether a person has actively participated in a PoS, the Secretary, and the Tribunal standing in his shoes, must have regard to the requirements specified in a legislative instrument made pursuant to section 94(3C).
The POS Determination was introduced, pursuant to section 94(3C) of the Act, on 3 September 2011, and applies to any person who made a claim for DSP after 3 September 2011 (see Guide to Social Security Law reference 1.1.A.30). As Mr McGann made his claim on 26 September 2011, Mr McGann is subject to this provision.
Generally, a person must complete an 18 month program before they can be taken to have actively participated in a PoS (section 5(2) of the PoS Determination) within the previous 36 months prior to the date of claim (section 5(1)(a)(ii) of the POS Determination).
There are exceptions to this requirement as follows (as set out in s5(3) to (5) of the PoS determination:
(a) the person has completed a program that ran for a period less than 18 months;
(b) the person was participating in a program that was terminated before the person claimed pension, because the person was unable, solely because of his or her impairment, to improve his or her capacity to find, gain or remain in employment through continued participation; or
(c) the person is participating in the program at the time of their claim but is prevented, solely because of his or her impairment, from improving his or her capacity to find, gain or remain in employment through continued participation.
MR MCGANN’S EVIDENCE AND SUBMISSIONS
Mr McGann gave oral evidence at the Tribunal and provided written submissions. He told me that he was married and has five children, and that he separated from his wife in approximately August 2011. He described a difficult personal situation with his family, and the fact that some of the children were in foster care during the 2011 claim period.
I noted also that Mr McGann has been involved with some violence.
Mr McGann told me that he presently lives with his parents some of the time, and has done so since 2013. At the relevant time of the 2011 claim, he was living independently. He attends TAFE two days a week. The travel from home to TAFE is approximately 25 minutes by car or train. He described the effects of his Depression and Anxiety, and how he would be awake when he should be sleeping. He also said that due to the effects of the medication, Oxicontin and Endone which he takes for pain relief, he often tends to fall asleep, and has in fact done so on one occasion during an exam.
Mr McGann submitted that I should disregard the report of Dr S Armstrong, a General Practitioner, of the Health Professional Advisory Unit (HPAU), and prefer the reports of Dr Henson who is a Psychiatrist and has been treating him since 2007. He submitted further that Dr Armstrong had not examined him or requested to do so, and had disregarded the reports of Dr Henson, making findings which are incorrect, and unfair to him. Mr McGann submitted he would have agreed to be examined by Dr Armstrong, but that no one asked him. Mr McGann also submitted that Dr Armstrong had misinterpreted his TAFE results, and that there were errors in the TAFE attendance records which could be clarified by perusing the manual roll call records. He stated that there were demonstrated errors and omissions of material facts to the Respondent and this Tribunal in Dr Armstrong’s report.
Mr McGann also criticised the qualifications of the assessors for the JCAs, submitting that they should be medically qualified.
There are documents before the Tribunal which indicate that notwithstanding the difficulties with concentration Mr McGann describes, his results at TAFE are impressive. He has gained distinction results in an Advanced Diploma, and studied at within both claim periods.
Dr K Henson, Psychiatrist
The Tribunal had reports of Dr Henson which were in the section 37 documents, and further recent reports dated 30 April 2015 (Exhibit A3/ST6), and Exhibits 1 and 2 dated 25 July 2014 and 3 November 2014 respectively.
Dr Henson has been treating Mr McGann since 2007. In his report of 30 April 2015, Dr Henson opined that Mr McGann qualifies for 30 impairment points for Depression, Anxiety and Post Traumatic Stress Disorder (PTSD), under Table 6, as his psychological/psychiatric symptoms, signs and impairment have been present for a number of years and in 2011 and subsequently.
Dr Henson also stated that since October 2012 Mr McGann has continued to have severe difficulties in the following areas of his life, adaptation, health and ability.
Dr Henson stated (without reference to a particular period), that Mr McGann has required the help of others for personal assistance and household tasks. He mentioned anxiety Mr McGann suffers with travel, the fact he is socially isolated due to his psychiatric illness, difficulties with concentration and learning, insomnia and other symptoms, due to Fibromyalgia and medication. Dr Henson also stated that Mr McGann’s social isolation and emotional difficulties have impacted on his ability to plan ahead and organise.
Dr Henson opined that Mr McGann would be unable to work 15 hours on award based work from 2011 and into the foreseeable future. In his report dated 3 November 2014, Dr Henson referred specifically to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, and opined that since 2010, and continuing, Mr McGann shows a severe impairment due to Major Depressive Episode and Anxiety Disorder. These, he opines, have severely impacted on his mental health:
resulting in markedly reduced social functioning, recreational activities, interpersonal relationships, concentration and task completion, planning and decision-making and his behaviour generally.
In the report dated 25 July 2014, Dr Henson opined that from 2007 when he commenced treating Mr McGann, the Applicant was affected by his Anxiety and Depression, but that in recent years he developed significant physical illness with probable autoimmune disorder (Fibromyalgia) and Carpal Tunnel Syndrome. Dr Henson opined that in recent years, Mr McGann has deteriorated to the level that his medical and psychiatric health are such as to cause him to be disabled to a level of approximately 50%, and that he is unwell and unfit for work and study. Dr Henson reiterated much of what was in his written reports when giving his oral evidence.
MATTER 2014/5579, THE FIRST DSP CLAIM
Background

Mr McGann, made his first claim for DSP on 26 September 2011. He listed his conditions as physcoligical [sic], hernia, carpal tunnel syndrome, depression and anxiety, flat foot and tendonitis.
On 2 November 2011 a Department Job Capacity Assessment (JCA) was carried out by a Registered Occupational Therapist; the co-assessor was a Registered Psychologist. They are persons authorised to carry out the JCA. The JCA identified the following medical conditions: Hernia, Carpel Tunnel Syndrome, Depression, and Bilateral Plantar Fasciitis.
The JCA recommended an impairment rating of 10 points for Depression under Table 6 of the Act, Schedule 1B - Tables for the assessment of work-related impairment for disability support pension (the old Impairment Tables), applicable at that time. The JCA also found that Mr McGann had a baseline work capacity of 8-14 hours per week, and that his capacity for work within two years with intervention was 15-22 hours per week.
The Department rejected Mr McGann’s claim on 9 November 2011. Following Mr McGann’s request for an internal review, an Authorised Review Officer (ARO) affirmed the original decision to reject the first claim on 25 July 2012. Mr McGann applied for review to the SSAT. On 30 May 2014 the SSAT affirmed the decision of the ARO. On 7 November 2014 Mr McGann applied for review of the SSAT decision to this Tribunal. That is now Matter 2014/5779 before this Tribunal.
MATTER 2014/5779 – ISSUES TO BE DECIDED
The issue to be decided is whether Mr McGann was qualified or became qualified to receive DSP within the period 26 September 2011, (the date of claim), to 25 December 2011 (13 weeks after the date of the claim).
This depends on whether Mr McGann satisfied section 94(1) of the Act, in particular during the relevant period, that is:
·identifying Mr McGann’s conditions;
·whether Mr McGann’s impairments were permanent within the meaning of social security law, and, if so;
·whether Mr McGann’s impairments attracted an impairment rating of 20 points or more under the Impairment Tables, and, if so;
·whether Mr McGann had a continuing inability to work, including the requirement to have actively participated in a PoS.
The conditions Mr McGann suffered at the relevant time in 2011
Mr McGann indicated on his claim form that his conditions were, physcoligical [sic], hernia, carpal tunnel syndrome, depression and anxiety, flat foot and tendonitis.
The JCA dated 2 November 2011 identified the following medical conditions: Hernia, Carpel Tunnel Syndrome, Depression, and Bilateral Plantar Fasciitis.
The SSAT held that at the relevant time Mr McGann suffered from impairments due to Depression, and that he therefore satisfied section 94(1)(a) of the Act.
Having heard evidence from Mr McGann, and reviewed the medical evidence, I concur that he suffered Hernia, Carpel Tunnel Syndrome, Depression, and Bilateral Plantar Fasciitis at the relevant time.
Whether Mr McGann’s impairments were permanent within the meaning of the social security law, and whether they attracted an impairment rating of 20 points or more under the ‘old’ Impairment Tables between 26 September 2011 and 25 December 2011
Mr McGann’s evidence regarding his impairment ratings included evidence regarding the difficulties he was having with his family at the relevant time. He said that he lived at his sister’s house for a month in 2011, and sometimes lived at his parents’ house. He told me that he could not sleep well, and that his Depression and Anxiety affected him
The Respondent held that Mr McGann’s Depression and Anxiety was fully diagnosed, treated and stabilised, and relied on the finding of the JCA dated 2 November 2011 that Mr McGann had a total impairment rating of 10 points for his Depression and Anxiety. It held that therefore, (whilst Mr McGann satisfied the requirements of section 94(1)(a) of the Act), he did not, in the relevant period, does not satisfy the requirements of section 94(1)(b).
Mr McGann disputed the 10 impairment points awarded. He argued that the opinion of Dr Henson, who is a Psychiatrist, and whose opinion was that 30 impairment points was appropriate, should be preferred over that of the JCA. He also disputed the report of Dr Armstrong as noted below.
I noted that the Secretary relied on the following evidence for the relevant time in support of his contention:
(a)Medical report from psychiatrist Dr Kenneth Henson dated 23 September 2011. Dr Henson reported under symptoms that Mr McGann “has been unhappy, depressed, worried, anxious and distressed for many years. Unable to work in recent years.” Dr Henson reported under impact of ability to function as “difficulty coping with the long term difficulties”.
(b)The JCA dated 2 November 2011. The JCA found that: “Moderate and regular symptoms and generally functioning with some difficulty. (eg noticeable reduction in social contacts or recreational activities, or the beginnings of some interference with interpersonal or workplace relationships). May have received psychiatric treatment which has stabilised the condition. Minor effects on work attendance and/or ability to work but the impairment would not prevent full-time work (eg Short periods of absence from work)”.
The Secretary noted that in his report dated 30 April 2015, over three years after the claim period, Dr Henson gave a rating of 30 points for Depression, Anxiety and Post Traumatic Stress Disorder (PTSD) under Table 6. Dr Henson wrote that during the time I have been seeing Mr McGann since 2007, his psychological/psychiatric condition has fluctuated and my opinion about the severity relates to the overall functional ability over the last 7-8 years. Dr Henson proceeded to give a detailed analysis of the impact of the mental health conditions on Mr McGann’s ability to function.
However, the Secretary contended that Mr McGann’s impairment should be rated at no greater than 10 points under Table 6 as found by the previous decision makers, and not 30 points as opined by Dr Henson. The Secretary contended that there is no medical evidence indicating that Mr McGann experienced frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms and a significant interference with interpersonal or workplace relationships with serious disruption of work attendance or ability to work during the claim period as required for a rating of 20 points under Table 6.
The Secretary also relied on the report from Dr S Armstrong of the Department’s Health Professional Advisory Unit (HPAU). In holding that the correct rating for Mr McGann’s psychiatric illness was 10 points under Table 6, Dr Armstrong gave the following detailed analysis:
...I consider that the medical evidence during the relevant period for the 23/9/11 DSP claim, was in keeping with a 10 point rating, as the descriptor for the 20 point level was not met. This descriptor required “either serious symptomatology, or impairment in functioning ... eg frequent suicidal ideation, severe obsessional rituals, frequent severe anxiety attacks, serious anti-social behaviour, diagnosed psychotic illness with continuing symptoms ... with serious disruption of work attendance or ability to work”. There was no evidence at that time, that any of these issues were part of Mr McGann’s difficulties. I also note that during 2011 Mr McGann completed an Advanced Diploma of Management with a distinction level pass and a Certificate IV of Human Resources with a credit level pass. These courses required an on-campus attendance for at least 2 days/week, suggesting that Mr McGann was able to study for 15 hours/week or more, so he did not have a ‘continuing inability to work’ at the time of this claim.
... I consider that the appropriate rating using the available evidence during this claim is 10 points for a moderate impairment, as the medical evidence indicates that it seems likely that descriptors b [social/recreational activities and travel]; c [interpersonal relationships]; e [behaviour, planning and decision-making]; and f [work/training capacity] would have been met at this level. There was no medical evidence at that time that indicated that Mr McGann had severe difficulties with any of the descriptors on table 5, including; a [self-care and independent living] and d [concentration and task completion]. I note that during 2012 the TAFE educational transcripts indicate that he completed a Certificate IV in Advertising and a Diploma of Marketing, both with distinction level passes, and a Certificate IV in Marketing with a credit level pass. In my clinical experience and knowledge, it would be very difficult, if not impossible for someone with severe depression to complete a number of courses at this high level, as these would require a significant amount of motivation, concentration, planning and decision-making. These TAFE courses required on-campus attendance for approximately 2.5 days per week, so regular travel and interactions with others, would have been necessary.
Dr K Henson has provided several further reports which are outside the relevant periods of both claims; 22/11/13, 25/7/14 and 26/9/14, which state that Mr McGann has additional symptoms such as despondency, social withdrawal and lack of interest. Dr K Henson has also provided a 30/4/15 report addressed to the AAT. In this report Dr K Henson states that 30 points would have been appropriate on table 6 [presumably for the 23/9/11 claim], but he does not elaborate further. I acknowledge that Dr K Henson has been Mr McGann’s long-term treating psychiatrist, but it is not clear whether he is familiar with the interpretation of the impairment guidelines for either the pre-2012, or the current tables. I consider that the medical evidence for the 23/9/11 claim and Mr McGann’s ability to complete and pass at a high level 2 substantial courses is not consistent with a severe impairment. It is also not clear whether Dr K Henson is aware of the extent of Mr McGann’s educational achievements during this time, or whether Dr K Henson appreciates that the relevant legislation states that a person’s ability to either work or study must be considered...
...Mr McGann has been able to study full-time from 2011-2013. He also graduated on 20/12/13 with a Bachelor in Business Studies, with at least a passing grade in all subjects and a GPA of 5.13. I consider that would be in keeping with a moderate impairment.
. I therefore consider that Mr McGann might meet 2 descriptors [b and c] at the severe impairment at most and the other descriptors would be met at a moderate impairment level. The impairment table guidelines state that most descriptors must be met for a rating to be allocated at any particular level. This would mean that 4 out of 6 descriptors would need to be met at the 20 point level and I consider that this is not the case.
Mr McGann submitted that I should disregard the report of Dr Armstrong, who is a General Practitioner, and prefer the reports of Dr Henson who is a Psychiatrist. He submitted further that Dr Armstrong had not examined him or requested to do so, and had disregarded the reports of Dr Henson, making findings which were incorrect and unfair to him. Mr McGann submitted that Dr Armstrong had misinterpreted his TAFE results, and demonstrated errors and omissions of material facts to the Respondent and this Tribunal.
The Secretary’s position, in reliance on Dr Henson, Dr Armstrong and the JCA, was supported by the decision of the SSAT, which, after weighing the impact of Depression on Mr McGann’s ability to function against the impairment descriptors in Table 6, decided at [20], (T2/8):
Mr McGann lives independently and does not require support from family members or other personnel. He was able to undertake a training course at TAFE in 2011. It is clear that he has had few social contacts and recreational activities for many years. Mr McGann has never exhibited suicidal ideation. There is no evidence that he has ever engaged in obsessional rituals or had frequent anxiety attacks. He did not display disordered thought processes at the hearing and clearly is not psychotic. There is a history of aggressive antisocial behaviour necessitating involvement with the police. The report from Dr Henson tabled at the hearing states that he has been seeing Mr McGann approximately 2-weekly since September 2011 and describes his depression as “moderate to severe”. Overall the tribunal was not persuaded that the above criteria for an impairment rating of 20 points from Table 6 were fulfilled in September 2011 and therefore agreed with the rating of ten points assigned by the job capacity assessor.
The Secretary contended that the medical evidence did not point to greater than a 10 point rating under Table 6, and that therefore, section 94(1)(b) of the Act was not satisfied.
I have noted the above, and also that the SSAT considered Mr McGann’s evidence that he was living independently, and that whilst he had few social contacts and few recreational activities for many years, he was able to undertake study at TAFE in 2011. I too have considered that evidence, and concur with the JCA and the Secretary that 10 impairment points under ‘Table 6 - Psychiatric Impairment’ was the appropriate award for Mr McGann during the relevant period.
Accordingly, Mr McGann did not meet the relevant qualification criteria for section 94(1)(b) of the Act as at the relevant period in 2011. It was thus unnecessary to consider section 94(1)(c) of the Act and whether Mr McGann had a continuing inability to work.
But before coming to a decision that McGann could not succeed with his claim for DSP for the relevant period in 2011, and that the decision of the SSAT had to be affirmed, I considered Mr McGann’s other conditions in connection with the claim to be assessed for the period 26 September 2011 - 25 December 2011.
Carpal tunnel syndrome
Mr McGann’s evidence regarding his carpal tunnel for the relevant time in 2011 was as told to the SSAT at [21] that he has not had a operation for his carpal tunnel condition. He wears a splint at night... Therefore at the relevant time, Mr McGann’s Carpal Tunnel Syndrome was not fully treated and stabilised.
I noted that the Secretary relied on the following evidence in support of his contention:
(a)Medical report from Dr M Dowla dated 11 June 2010. Dr Dowla reported that: There is fair electroclinical correlation for carpal tunnel syndrome in the right hand. Depending on the progress a right carpal tunnel decompression may be undertaken. I suggested him to use a splint at night [sic]. I will be happy to review him perhaps in four to six months’ time to see the progress.
(b)Medical report from Dr G Agyagasi dated 21 September 2011. Dr Agyagasi reported that current treatment was intermittent splitting and analgesia, and that future/planned treatment included referral to surgeon.
(c)The JCA report dated 2 November 2011. The JCA found that due to the nature of this condition, and the likelihood the client would benefit from further intervention such as carpal tunnel release, this condition is not considered fully treated and stabilised following evidence based practice.
I accepted from the medical reports and the JCA mentioned above, including the plan that Mr McGann would be referred to a surgeon, that his carpal tunnel syndrome was not fully treated and stabilised during the relevant period, and that accordingly no impairment rating could be given.
Hernia
Mr McGann’s evidence to the SSAT on 30 May 2014 when he told the SSAT at [23] that he has not had an operation. The hernia does not cause symptoms. Mr McGann does not have a swelling in his groin.
The Secretary contended that Mr McGann’s hernia was not fully treated and stabilised during the claim period, and relied on the following evidence in support of his contention:
(a)Medical report from Dr Ken Simmons dated 17 April 2009. Dr Simmons diagnosed Mr McGann with a small reducible fatty left inguinal hernia.
(b)Medical report from Dr Henson dated 23 September 2011. Dr Henson reported that Mr McGann was unable to get surgery and had continuing pain.
(c)The JCA report dated 3 February 2012, stated:
Left inguinal hernia was diagnosed in 2009. Symptoms reported as pain. Treatment reported as pain medication including Endep, Oxycontin and Valium. TDR [Treating Doctor Report] indicates that client is ‘unable to afford operation’. Client advised that he has a referral to a surgeon for treatment advice for this condition and plans to seek advice regarding the public health waiting list for surgery.
On the basis of the above medical reports, I accepted the Secretary’s contention that Mr McGann’s hernia was not fully treated and stabilised during the relevant period. Accordingly no impairment rating could be assigned.
Plantar fasciitis
Mr McGann mentioned his Plantar Fasciitis which causes him pain and discomfort.
The Secretary, in reliance on the following reports, contended that the Applicant’s plantar fasciitis was not fully treated and stabilised during the claim period.
(a)Dr Henson stated in September 2011 that Mr McGann had increasing pain in his lower limbs and feet.
(b)Dr Agyagasi reported in September 2011 that significant improvement was expected for the plantar fasciitis, and that it was moderately significant.
(c)The JCA report dated 2 November 2011 found that Mr McGann’s plantar fasciitis was not fully investigated, treated or stabilised.
(d)Mr McGann’s evidence to the SSAT on 30 May 2014 when he told the SSAT at [25] that he gets blisters on his feet, and therefore wears shoes only when necessary such as to TAFE or the tribunal. He is able to walk everywhere in bare feet because the skin on his feet is very thick.
On the basis of the above, I concluded that the Secretary’s contention that the plantar fasciitis was not fully treated and stabilised was the correct assessment of Mr McGann’s condition during the relevant period. Accordingly no impairment rating could be given.
Fibromyalgia
The Secretary contended that Mr McGann’s fibromyalgia was not reported until 2012, and could not therefore be considered within the claim period. The Secretary relied on the medical report from Dr Agyagasi dated 17 October 2012 giving the date of diagnosis of fibromyalgia by Dr R White, a Rheumatologist, as 7 August 2012. I agreed with the submission.
Total impairment rating
I agreed with the Secretary’s contention that Mr McGann had a total of 10 impairment points in the relevant period calculated applying the old Impairment Tables, and that he thus did not satisfy section 94(1)(b) of the Act.
Continuing inability to work
I am mindful that due to the cumulative construction of section 94 of the Act, if a person does not have an impairment rating of 20 points or more under the Impairment Tables, then they do not satisfy section 94(1)(b) of the Act, and they are not qualified for DSP. As Mr McGann did not satisfy section 94(1)(b) of the Act, there is no legal requirement to consider whether or not he had a continuing inability to work for the purposes of subsection 94(1)(c) and subsection 94(2) of the Act at the relevant time in 2011.
The Respondent contended however, that in the event the Tribunal considered Mr McGann’s conditions to attract an impairment rating of 20 points or more, the Secretary would submit that Mr McGann did not have a continuing inability to work in the relevant period.
Capacity to work or undertake training for 15 hours per week
The Secretary further contended that Mr McGann did not have a continuing inability to work for at least 15 hours per week at the time of his September 2011 claim.
Section 94(2)(b) provides that:
(i)The impairments 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.

The Secretary indicated that Mr McGann’s strong attendance and results at Western Sydney Institute for TAFE indicated that he had the capacity to work or undertake a training activity as he was able to complete significant study at those institutions. The Secretary contended that the capacity to complete courses at TAFE (including with some Credit and Distinction grades), meant that there was a capacity to work for at least 15 hours per week.
The Guide to Social Security Law reference 3.6.1.42 provides:
Studying 15 hours or more per week:
A student participating in mainstream, unmodified study for 15 hours or more per week is unlikely to have a CITW [continuing inability to work]. This is because the activities required for study are generally equivalent to those required to undertake work.
The records from Western Sydney Institute for TAFE NSW indicate that in 2011, multiple subjects were completed with a grade of ‘Competent’, including many with ‘Competent with Distinction’ and ‘Competent with Credit’.
The Student Attendance Details from Western Sydney Institute for TAFE NSW indicate that at various points during the claim period, Mr McGann was attending multiple classes per week. For example, the records show that he attended class for three hours on 14 November 2011 (page 13); three hours on 15 November 2011 (page 10); three hours on 16 November 2011 (page 19); and three hours on 17 November 2011 (page 11). This constitutes 12 hours per week of contact hours in classes.
It is reasonable to assume that further hours in addition to the 12 contact hours per week would have been necessary for TAFE. Additional hours would have included travel time to and from class, as well as any non-contact hours relating to studying, research, doing homework, completing assignments, and any other preparation for classes.
Therefore, it is more likely than not that Mr McGann was studying for over 15 hours per week during the claim period. This means that he did not have a continuing inability to work or undertake a training activity, and thus section 94(1)(c) of the Act was not satisfied.
I noted Dr Henson’s medical report dated 30 April 2015 in which he opined that: based on my knowledge of Mr McGann’s difficulties with progress, I think that he would be unable to work 15 hours on award based work from 2011 and into the foreseeable future.
The HPAU report provided, in relation to whether Mr McGann has a continuing inability to work:
...In my clinical experience and knowledge, it would be very difficult, if not impossible for someone with severe depression to complete a number of courses at this high level, as these would require a significant amount of motivation, concentration, planning and decision-making. These TAFE courses required on-campus attendance for approximately 2.5 days per week, so regular travel and interactions with others, would have been necessary. Again, as discussed in relation to the 23/9/11 DSP claim this would also suggest that Mr McGann did not have a ‘continuing inability to work’ for this second claim.
I consider that he does not have a ‘continuing inability to work’, as the educational transcripts indicate that Mr McGann has been able to satisfactorily complete numerous full-time courses, despite his medical conditions. An appropriate work capacity would be 15-22 hours/week...
In the JCA dated 2 November 2011 (T5/114), Mr McGann was assessed at having a baseline work capacity to work for 8-14 hours per week which was expected to increase to 15-22 hours per week within two years with intervention. The JCA identified interventions that were suitable for Mr McGann, including psychiatric services/treatment; Cognitive Behaviour Therapy; disability management education/counselling; job search skills; jobseeking; support groups; vocational assessment/counselling; vocational rehabilitation; work experience; and workplace assessment. The JCA gave examples of suitable work including light moderate skilled work such as customer service and admin assistant.
The Secretary contended that there was no persuasive evidence that Mr McGann’s medical impairments would have prevented him from working for at least 15 hours of work per week within the next two years of the claim period. Similarly, the Secretary contended that there was no evidence that Mr McGann’s medical impairments would have prevented him from undertaking a training activity within the next two years of the claim period (section 94(2)(b)).
In the process of determining whether a person has a continuing inability to work, the decision maker must be satisfied that the continuing inability to work is directly caused by the medical impairment that has been assigned an impairment rating under paragraph 94(1)(b) of the Act, as held in Secretary, Department of Social Security v Pusnjak [1999] FCA 994 and Crossland and Secretary, Department of Family and Community Services [2004] AATA 864. Impairments that have not been assigned a rating under the Tables cannot be considered when assessing a person’s capacity to work.
A number of other factors are also to be disregarded when determining whether a person has a continuing inability to work, including motivation (Secretary, Department of Social Security v Pusnjak [1999] FCA 994) or preferences (Crossland and Secretary, Department of Family and Community Services [2004] AATA 864) for a type of work, the availability to the person of a training activity or work in the person’s locally accessible labour market (section 94(3) of the Act), and the person’s potential attractiveness to an employer in a particular area of work (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846).
The Secretary contended that the JCAs are qualified to make an assessment of Mr McGann’s continuing inability to work. The Secretary contended that the Tribunal should rely on the JCA. The Secretary also contended that the HPAU is qualified to analyse medical reports in the context of social security law and the Impairment Tables.
In light of the evidence from Western Sydney Institute for TAFE, the Respondent submitted that it could not be said that Mr McGann was unable to work or undertake training for at least 15 hours per week during the claim period.
Therefore, the Secretary contended that Mr McGann did not have a continuing inability to work, and did not satisfy paragraph 94(1)(c) of the Act.
The Secretary further contended that Mr McGann had not actively participated in a PoS for 18 months in the three years prior to the date of claim. The Secretary also contended that there was no evidence Mr McGann had a continuing inability to work (including undertaking training) for at least 15 hours per week, (section 94(5) of the Act). The Secretary’s submission was therefore, that paragraph 94(1)(c) was not satisfied.
The Secretary submitted that the records indicated Mr McGann participated for approximately three months, from 6 May 2011 to 5 August 2011 with Jobfind Mount Druitt.
I accepted those records as accurate, and am satisfied that as Mr McGann did not satisfy the PoS requirement, he cannot satisfy section 94(1)(c) of the Act. His claim for DSP in Matter 2014/5779 must fail.
MATTER 2013/6066 – THE SECOND DSP CLAIM
Background
On 4 October 2012 Mr McGann lodged a second claim for DSP, subject of Matter 2103/5066 before this Tribunal. He listed his conditions as physcoligical [sic], hernia, carpal tunnel syndrome, depression and anxiety, flat foot and tendonitis. The relevant period for this claim is 4 October 2012 – 2 January 2013.
The Department rejected Mr McGann’s claim on 7 November 2012, and on 8 February 2013, an ARO affirmed the decision to reject the DSP claim.
Mr McGann then applied for review to the SSAT which on 12 September 2013, affirmed the ARO’s decision to reject the DSP claim.
On 27 November 2013, Mr McGann then applied for review to the AAT, that application being the subject of Matter 2013/6066.
The same legislation mentioned above in relation to Matter 2014/5779 applies, and is not repeated here.
ISSUES TO BE DECIDED
In Matter 2013/6066, the issues to be decided are whether Mr McGann was qualified or became qualified to receive DSP within the period 4 October 2012 (the date of claim) to 2 January 2013 (13 weeks after that date). This depends on whether Mr McGann satisfied section 94(1) of the Act, during the relevant period, in particular:
·What impairments Mr McGann suffered during the relevant period;
·whether Mr McGann’s impairments were permanent within the meaning of social security law, and, if so;
·whether Mr McGann’s impairments attracted an impairment rating of at least 20 points, and, if so;
·whether Mr McGann had a continuing inability to work, including the requirement to have actively participated in a PoS.
What impairments Mr McGann suffered during the relevant period
The Secretary accepted that Mr McGann suffered Depression, Carpal Tunnel Syndrome, Hernia, Plantar Fasciitis, Fibromyalgia, Testicular Cyst, and Hypertension. Accordingly there was an acceptance of him meeting the requirements of section 94(1)(a). Taking into account the evidence before me, I concur.
Whether Mr McGann’s impairments were permanent during the relevant period within the meaning of social security law and whether his impairments attracted an impairment rating of at least 20 points
On 23 October 2012 a JCA was carried out in relation to this claim by a Registered Psychologist with the co-assessor, a Rehabilitation Counsellor. The JCA identified the following medical conditions: Psychol/Psychiatric Disorder, Left Inguinal Hernia, Carpal Tunnel Syndrome, Plantar Fasciitis, Cyst on Testicle, Hypertension, and Arthritis and Fibromyalgia.
The JCA recommended an impairment rating of 10 points under Table 5 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 for Psychol/Psychiatric Disorder. The SSAT held that under Table 5, it did not consider Mr McGann had a moderate degree of impairment in any area because of his mental health condition. The SSAT accordingly awarded five impairment points under Table 5.
I have taken into account Mr McGann’s evidence and that of his treating Psychiatrist, Dr Henson, and find that it is appropriate to award 10 impairment points to Mr McGann for his Psychol/Psychiatric Disorder.
The JCA also recommended 10 points under Table 1 for Arthritis and Fibromyalgia. The SSAT agreed on the basis of Mr McGann’s evidence, and the report of Dr Agyagasi. I concur.
As to the other medical conditions; based on the reports of Dr Agyagasi dated 17 October 2012, and the report of Dr Henson dated 23 September 2011, the condition of Carpal Tunnel Syndrome was held not to be fully diagnosed, treated and stabilised. Accordingly no impairment points could be awarded.
The Cyst on Mr McGann’s testicle was awaiting surgery during the relevant time, and hence could not be held to be fully diagnosed, treated and stabilised. Accordingly no impairment points could be awarded.
Mr McGann’s Hypertension was considered to be permanent, being treated with medication, (Dr Agyagasi), and was accordingly held to be fully diagnosed, treated and stabilised. No impairment points were awarded. Dr Henson 3 October 2012 reported Mr McGann’s hypertension as an additional physical illness problem where no significant improvement was expected. I was satisfied from the evidence that Mr McGann’s hypertension was at the relevant time, generally well managed and caused limited impact on his ability to function. No impairment points should be awarded.
The Inguinal Hernia was diagnosed in 2009. Dr Henson and the JCA noted that Mr McGann was unable to afford surgery, and suffered pain. It was considered, and I agree, not fully treated or stabilised, and accordingly no impairment rating should be given.
The Plantar Fasciitis needed further assessment according to Dr Henson. Accordingly it was not fully treated or stabilised, and accordingly no impairment rating should be given.
In summary then, Mr McGann had 20 impairment points under two different tables, satisfying section 94(1)(b) of the Act.
Whether Mr McGann had a continuing inability to work, including the requirement to have actively participated in a program of support.
As Mr McGann is not qualified for 20 impairment points under a single table, he does not have a severe impairment pursuant to section 94(3B) of the Act, and was required to actively participate in a PoS. The records to which the Respondent referred indicated that Mr McGann had not participated in a PoS except for three months in May – August 2011. I have noted that tertiary study does not qualify in that context.
Accordingly Mr McGann could not satisfy section 94(1)(c) of the Act.
Whilst it is therefore not necessary to consider Mr McGann’s capacity to work or undertake training for 15 hours a week, I have noted the Secretary’s submissions that Mr McGann did not have a continuing inability to work for at least 15 hours a week in the period 4 October 2012 – 2 January 2013.
I have noted also that Dr Henson in his report of 30 April 2015, considered that Mr McGann would be unable to work 15 hours a week from 2011, and into the foreseeable future.
The JCA in 2012, assessed that Mr McGann could work 8 – 14 hours a week, increasing to 15 – 22 hours a week within two years with intervention.
I noted that Mr McGann’s tertiary studies qualify as work, and that he was capable of undertaking what appears from the records before me to be more than 15 hours a week during the relevant period. For the sake of completeness, I note that his academic results were very strong. I congratulate him on those.
LIMITATION ON ARREARS
The Secretary contended in Matter 2014/5779, that were Mr McGann to satisfy the qualification criteria for DSP, the date that he would be payable from is no earlier than 3 April 2014, being the date he applied for review to the SSAT (SSAT decision at [4]). This was as a result of Mr McGann’s delays in appealing to the SSAT, and the operation of section 152 of the Administration Act.
The Secretary submitted that Mr McGann requested an ARO review of the original decision to reject his DSP claim on 23 April 2012. Notice of the ARO’s rejection was given to Mr McGann on 25 July 2012. Mr McGann delayed requesting a review with the SSAT until 3 April 2014, approximately one year and eight months after the ARO decision.
As I have found that Mr McGann does not satisfy the criteria to receive DSP in the relevant period in 2011, there is nothing further to say on this issue.
In Matter 2013/6066, for similar reasons, were Mr McGann to satisfy the qualification criteria for DSP, the date that he would be payable from is no earlier than 20 June 2013, being the date he applied for review to the SSAT. This was as a result of Mr McGann’s delays in appealing to the SSAT, and the operation of section 152 of the Administration Act.
As I have found that Mr McGann does not satisfy the criteria to receive DSP in the relevant period in 2012/2013, there is nothing further to say on this issue.
DECISIONS
The Tribunal affirms the decision of the SSAT in Matter 2014/5779.
The Tribunal affirms the decision of the SSAT in Matter 2013/6066.

I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
..............................[sgd]..........................................
Associate
Dated 27 October 2015

Date of hearing 8 July 2015

Applicant In person

Solicitors for the Respondent Department of Human Services

[2015] AATA 823

27 October 2015

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Division	GENERAL DIVISION
File Numbers	2013/6066 and 2014/5779
Re	David McGann
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Ms G Ettinger, Senior Member
Date	27 October 2015
Place	Sydney

Date of hearing	8 July 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services