Meeth; Secretary Department of Employment and Workplace Relations and

[2007] AATA 2034

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2034

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 200600864

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And NICHOLAS MEETH

Respondent

DECISION

Tribunal

Ms N Isenberg, Senior Member

Dr M Thorpe, Member

Date11 December 2007

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal is affirmed.  The Tribunal finds that Mr Meeth was, at the relevant date, qualified for disability support pension because he has psychiatric impairment which is properly rated at, at least 20 points under the Impairment Tables.  The Tribunal finds he had a continuing inability to undertake any work for at least 30 hours per week, or any educational or vocational training or on-the-job training during the two years from the date of claim.

…………..…[sgd]………………..

Ms N Isenberg, Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL )  
  )   N 2006/0864
GENERAL ADMINISTRATIVE DIVISION )

Re:SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And:NICHOLAS MEETH

Respondent

ORDER TO AMEND WRITTEN DECISION [2007] AATA 2034

TribunalMs N Isenberg, Senior Member

Date11 January 2008

PlaceSydney

WHEREAS:

1.   The Tribunal released a written decision in this matter, which was dated 11 December 2007.

2.   It has come to the Tribunal’s attention that there were typographical errors in relation to application N 2006/0864.

3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act 1975.

NOW THE TRIBUNAL THEREFORE ORDERS N2006/0864 decision reads as follows:

50.We were referred to Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, where Justice Drummond noted that it is clear that the legislature intended that attitudinal factors peculiar to a claimant, such as a lack of motivation, should not be taken into account when deciding whether the person has a continuing inability to work.

………….[SGD]…………..
  Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the Impairment Tables – whether the Applicant had a ‘continuing inability to work’ – decision under review affirmed.  

LEGISLATION

Administrative Appeals Tribunal Act 1975 – section 37

Social Security Act 1991 – sections 94, Schedule 1B

CASE LAW

Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517

Re Tlonan and Department of Social Services (1997) 24 AAR 467

Re Triantafillou and Secretary, Department of Family and Community Services (2003) 73 ALD 568

Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

REASONS FOR DECISION

11 December 2007 Ms N Isenberg, Senior Member, Dr M Thorpe, Member

DECISION UNDER REVIEW

1. The Secretary, Department of Employment and Workplace Relations (‘the Secretary’) has applied for review of the decision of the Social Security Appeals Tribunal (‘SSAT’) dated 9 June 2006. There the SSAT set aside an earlier decision of a Centrelink Authorised Review Officer (‘ARO’) that the Applicant, Mr Meeth, did not qualify for the disability support pension (‘DSP’) under section 94 of the Social Security Act 1991 (‘the Act’).

BACKGROUND

2.      In his application for DSP lodged on 14 November 2005, Mr Meeth described the impact of his conditions, which were listed there as:

… depression, insomnia, mild obsessive, compulsive disorder, irritable bowel syndrome, anxiety disorder (panic attacks), attention deficit

He stated that his conditions often affect his ability to speak and manage his personal affairs, and that his concentration, interaction with others, ability to attend work or other appointments and sleep are affected all the time.

3.      In support of the application, Mr Meeth‘s treating psychiatrist, Dr Cook, provided a Treating Doctor’s Report (‘TDR’) dated 11 November 2005.  There he stated that Mr Meeth had major depression that was diagnosed in 2001 and a sleep disorder that was diagnosed in 2004.  At the date of the TDR, Dr Cook stated that Mr Meeth was temporarily unfit for work for the period of 4 November 2005 to 4 May 2006.  He stated that Mr Meeth's condition would fluctuate over the next two years, but that, ‘all my efforts thus far has (sic) only had partial success’.

4.      A Health Services Assessment (‘HSA’), dated 20 January 2006, stated that Mr Meeth was only temporarily unfit for work and that he should be reassessed in 12 months time.

5.      On review Centrelink refused Mr Meeth’s application, noting that Mr Meeth had not complied with a change in medication and that he had not been referred to an anxiety disorder clinic as had been suggested as a future treatment option in the TDR.  It also noted that Dr Cook was to refer Mr Meeth to a sleep disorder specialist.  His conditions were therefore not regarded as permanent and therefore not rateable.

ISSUE BEFORE THE TRIBUNAL

6.The issues to be determined with relation to this matter are:

a)As at 14 November 2005 did Mr Meeth have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and, if so,

b)Did he have a continuing inability to work as a result of the impairment because:

·     the impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next two years from the date of claim; and either

·     the impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on the job training during the next two years from the date of claim; or

·     such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years from the date of claim.

EVIDENCE

7.      In addition to documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (‘the T-documents’), further documents were made available to the Tribunal:

§  Job Capacity Assessment Report dated 2 March 2007;

§  Report of Dr Cook dated 14 January 2007;

§  Report of Dr Cook dated 22 December  2006;

§  Report of Dr Dodd dated 3 November 2006; and

§  Report of Dr Dodd dated 31 January 2007.

8.At the hearing, Mr Meeth gave evidence, as did Dr Cook, Mr Harrison and Dr Dodd.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

9.      In coming to the correct and preferable decision, we took into account all the evidence, submissions, case law and relevant legislation.

Did Mr Meeth by reason of his depression and, or his sleep disorder have a physical, intellectual or psychiatric impairment of 20 points or more?

10.     An impairment rating can be only assigned to medical conditions which have been fully diagnosed, treated and stabilised.  

11.     In Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938, this Tribunal discussed the concept of permanence under the Act and said (at [22]):

The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.

We must therefore decide which, if any, of Mr Meeth’s conditions are permanent, before determining if any impairment rating is appropriate.

12.     Section 3.6.2.100 of the Guide to Social Security Law (‘The Guide’) provides guidance on when a particular condition could be considered stabilised.  In particular, a condition is regarded to be stabilised when all available, reasonable treatment that may result in a significant improvement within the next two years, have been undertaken, or it must be considered that with or without treatment, a significant functional improvement is unlikely to occur over the next two years.  In that regard, we note that it is now two years since Mr Meeth’s application for DSP and no resolution to Mr Meeth’s problems is in sight.

13.     It is well established that policy guidelines do not bind the Tribunal.  While the Tribunal may have regard to guidelines, the Tribunal is charged with applying the law and where the policy is inconsistent with the law, the policy should not be applied: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

Depression: Is it permanent?

14.     Dr Cook is Mr Meeth’s treating psychiatrist and has treated him weekly since August 2003.  In the TDR, Dr Cook stated that Mr Meeth suffered from major depression from at least 2001.  Dr Cook described Mr Meeth’s clinical features and symptoms as progressively developing from fatigue, anxiety and panic attacks to depressed mood, loss of confidence and reduced social interaction, noting Mr Meeth’s failure to cope with academic studies.  Mr Meeth was given antidepressant and mood stabilising medication for depression in the period until 2005.  Future treatment in the form of stimulant medication was earmarked for possible attention deficit disorder and anxiety disorder.

15.     Dr Cook was not certain whether the effect of Mr Meeth’s condition on his ability to function could be expected to improve, deteriorate or fluctuate in the two years after 2005.  As noted in paragraph 12 of this decision, two years have now elapsed without any clinical improvement in Mr Meeth’s condition.

16.     In his evidence Dr Cook said that he had ‘gone the extra mile’ in trying to find solutions to Mr Meeth’s condition.  He had prescribed a variety of medications and combinations of medications.  Mr Meeth’s condition had proved to be resistant to some medication.  Others had failed completely.  Side effects - which Mr Meeth described in his evidence as including nausea, constipation, appetite change, restless leg and drowsiness - were experienced and some medications had to be discontinued for that reason.  Dr Cook now regards Mr Meeth’s condition as untreatable because he has prescribed so many medications without success.  There remained a new medication, presently available only in the United States of America.

17.     Centrelink relied on the HSA medical assessment, by Dr Dhar, that Mr Meeth had been prescribed lithium but had stopped taking the medication.  Dr Dhar was of the view that Mr Meeth’s depression was temporary since he has not been compliant with his treatment.  This account to the HSA assessor was consistent, in our view, with Mr Meeth’s reports of side effects experienced from some medications and Dr Cook’s acceptance of the need to change medication.  We note too that the Dr Dhar confirmed that Mr Meeth was diagnosed with depression in 2001.

18.     As to a ‘possible referral to an anxiety disorder unit’ referred to in the TDR Dr Cook said he regarded Mr Meeth’s problems with depression and his sleep to be the priority rather than anxiety management.  In any event, he said, the anxiety and panic attacks experienced by Mr Meeth are symptoms of his major depression.  There was little point in referring him to such a clinic when he had demonstrated – by his failure to be able to continue his studies or work attempts - that he was unable to meet any scheduled program because of his sleep problem.  We note too that Mr Meeth is also unable to keep all his appointments with Dr Cook.  Dr Cook also said there was likely to be a cost issue as Mr Meeth was carrying significant HECS debts from his Policing and Theology courses which he has not completed.

19.     On 2 March 2007, Mr Harrison, a registered psychologist, conducted a Job Capacity Assessment (‘JCA’) and reported that Mr Meeth has not received any ‘non-medical, psychological assessment or treatment’ for his depression.  Furthermore, Mr Harrison indicated that Mr Meeth required ‘further assessment to better determine his psychological status so that an appropriate cognitive behavioural program can be developed to assist him overcome his current difficulties’.  Consequently, Mr Harrison considered Mr Meeth’s depression not to have been fully treated and stabilised.

20.     In his evidence, Mr Harrison said that Mr Meeth should have been offered Cognitive Behavioural Therapy (‘CBT’) which may have meant seeing a psychologist one or two times per week for at least six months.  We note Dr Cook’s remarks about Mr Meeth‘s inability to commit to attendance and also the cost issue.

21.     We were referred to the recent decision of the Full Federal Court which approved the Federal Court decision of Justice Gyles in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 concerning entitlement to Disability Support Pension. One of the issues there was whether the applicant’s chronic pain had been treated and stabilised. Justice Gyles made the following comments at [17]:

It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment. My initial impression, having read s94 of the Social Security Act 1991 and the Tables, was that the AAT should not have rejected the application on that basis…………. I remain of that view.

22.     We accept that Mr Meeth has undertaken all available, reasonable treatments for his long-standing depression.  Many medications have been trialled without success.  The remaining medication is only available in the United States of America.  CBT is out of his reach financially and in terms of regular attendance due to his sleep problem.  In any event, the evidence from his treating psychiatrist is that no significant improvement within the next two years can be expected.  Dr Cook’s evidence was of a long history of trialling, without success, a number of medications and combinations of medications.  We do not accept Mr Harrison’s suggestion that Mr Meeth undertake psychological assessment or treatment because we prefer the views of Dr Cook, Mr Meeth’s treating psychiatrist.  Neither does Mr Meeth’s condition change its character because Dr Cook had, at one stage, thought an anxiety disorder unit might assist.  We accept his explanation as to why that is an unrealistic proposal.  Most compelling was Dr Cook’s evidence that the condition was now, in his view, untreatable. 

23.     We also find that Mr Meeth’s condition has in fact been extensively treated.  In coming to this view we note the decision in Re Tlonan and Department of Social Security (1997) 24 AAR 467 (at 476 – 477), which considers the requirement that a condition be treated:

… That is to say, it [treatment] should not be limited to medical treatment in the sense of surgery or the prescription of medication. In its context, the word “treatment” refers to a broad range of therapeutic measures which are reasonable to adopt in the particular case and may include passive measures such as rest as well as active measures including, but not limited to, such diverse measures as the prescription of medication, physiotherapy, exercise generally and counselling. What amounts to the treatment in any particular case will depend on the individual circumstances of that case. …

… If a condition is not cured, or at least does not respond, to reasonable methods of treatment or if the side effects of the treatment are such that they are not tolerable or are harmful, the condition can still be said to have been treated. What are reasonable methods of treatment and what side effects are harmful or intolerable so that the treatment should not be pursued are questions of fact to be determined in each case.

24.     We find that the condition should be considered permanent at the date of claim. 

Depression: impairment rating

25.     On 14 January 2007 Dr Cook described Mr Meeth’s mood disorder as a permanent condition warranting ‘at least 30 impairment’ points, without indicating which Impairment Table he had used or how he had come to that conclusion.  It was submitted on Mr Meeth’s behalf that the medical evidence supports a finding that Mr Meeth had a psychiatric impairment, namely depression/anxiety at the date of his claim for DSP in November 2005, and that his psychiatric impairment attracted an impairment rating of 20 - 30 points under Table 6:

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.

THIRTY      Serious psychiatric illness with major impairments in several

areas, such as work, interpersonal relations, judgement,

thinking, or mood (eg. depressed person avoids friends,
neglects family, unable to do housework), OR some impairment in reality testing or communication (eg. speech is at times obscure, illogical or irrelevant).

26.     It was contended that the evidence from Dr Cook should be given great weight in considering this matter.  Dr Cook had been Mr Meeth’s treating psychiatrist for over two years at the date of claim.  He continues to see Mr Meeth weekly.  His report makes it clear that his conclusions are based on extensive contact, evaluation and treatment of Mr Meeth. 

27.     It was somewhat unclear how Dr Cook came to the conclusion that the psychiatric condition warranted a rating of 30 points.  Dr Cook’s reports, of 22 December 2006 and 14 January 2007, contain detailed analysis of the symptoms exhibited by Mr Meeth and their effect on his functioning.  We consider his rating, however, to be excessive and that from the evidence in his reports, a rating of 20 points is more appropriate.

28.     Mr Meeth’s own evidence also more appropriately fitted the descriptor for 20 impairment points.  He requires weekly psychiatric treatment, he said he had been suicidal and has panic attacks which have required emergency hospital treatment.  He has relationship difficulties and appears not to have been able to adequately function in the house he shared.  He had social anxiety at university, being terrified of being asked a question.  He said his concentration was poor and he feels his brain is ‘permanently addled’.  Travelling to work or university would cause him such stress he would have to stop for toilet breaks just getting there.  When tutoring he could not cope with the stress of anxious parents.

Sleep disorder: is it permanent?

29.     Dr Cook wrote in the TDR in November 2005 that he considered Mr Meeth suffered from circadian sleep disorder.  He set out a detailed history of this disorder, describing the progressive onset of disruptive abnormal cycling sleep/wake disorder in Mr Meeth.  Dr Cook noted that Mr Meeth received treatment for this condition in the form of sleep hygiene behaviour therapy (by sleep behaviour therapists) and the use of sedative medication in the form of sedative antidepressants, mood stabilisers and sedative anti-psychotic medication.  He had prescribed melatonin and had also obtained a special lamp for Mr Meeth.  It was Dr Cook’s opinion that the treatment was largely unsuccessful.  He referred Mr Meeth to a sleep specialist, Dr Dodd.

30.     Dr Cook wrote that no matter how hard Mr Meeth tried to initiate a normal sleep/wake cycle, the effects were debilitating on his mood and cognitive functions which would only improve when he returned to his own sleep/wake cycle.

31.     Dr Dodd saw Mr Meeth on several occasions after the initial referral late in 2004.  Since then, he has continued to see him about every three to six months.  He said Mr Meeth suffers two separate sleep disorders: delayed sleep phase syndrome and psycho-physiological insomnia.  He regarded Mr Meeth’s underlying depression, anxiety and panic as ‘complicating matters’. 

32.     He said there was no known cure for the conditions.  Treatment however revolves around ‘sleep hygiene’: recommending a dark quiet comfortable room with no distractions and behavioural manipulations such as setting up bedtime routines, exposure to bright sunlight in the morning and not going to bed too early.  He was doubtful about the usefulness of melatonin and considered the lamp to be largely unnecessary in the Australian climate. 

33.     Dr Dodd agreed in cross-examination that stabilising Mr Meeth’s sleep conditions depended on the control of his psychiatric conditions and that the ‘two went hand in hand’.  If that occurred then he thought the sleep disorder could be overcome in two to three months.  As discussed above though, as his psychiatric condition is properly considered to be permanent, we cannot accept that improvement in his sleep condition is likely to occur.  

34.     As to CBT, Dr Dodd considered that this had already been undertaken in terms of the advice he had provided.  This was to be preferred in any event to the psychologist recommended by Mr Harrison.  A sleep study could be conducted to investigate if there were other issues affecting Mr Meeth’s seep but Dr Dodd doubted this was the case.

35.     We find that the sleep disorder should be considered permanent at the date of claim.  Mr Meeth has not responded to treatment and no cure has been identified.  The condition is bound up with Mr Meeth’s permanent psychiatric condition.

Sleep disorder: impairment rating

36.     Mr Meeth said that he had not slept normally since about the time he was in Year 11 at school. 

37.     In Dr Cook’s description in the TDR, Mr Meeth’s sleep cycles did not follow a fixed pattern, but varied from day to day, with each day resulting in later sleep onset than the day before.  He described how Mr Meeth could sleep during and through the day for weeks on end until the cycle completes and he returned to a normal day/night sleep pattern.  Then the cycle would re-commence again.  He described in his evidence that the delayed sleep cycle had become grossly abnormal and more irregular.  In relation to the effect that the sleep disorder had on Mr Meeth’s employment prospects, Dr Cook said:

I believe that he would just not be able to hold down a job because of his sleep/wake cycling disorder.  He wouldn’t be able to fit in with any shifts or I think work expectations that an employer would want to have.  He would be unreliable in attendance and probably also unreliable in his ability to be able to perform his work.  This is one or (sic) the nature of the effects of depression and also that of being unduly tired and fatigued. 

38.     In his evidence, Dr Cook considered Mr Meeth might have and impairment rating of 40, because although he considers Mr Meeth to have capacity for self-care, he notes that Mr Meeth is highly dependent on his family, particularly his mother, for support. He further considered that it would be unlikely that ‘an employer would tolerate him being unreliably (sic) attending at work’.

39.     Dr Cook stated that Mr Meeth’s sleep/wake cycle disorder makes it ‘very difficult for him to be able to make leisure and lifestyle changes’ to improve his quality of life and make it more enjoyable.

40.     His condition causes him to miss appointments, including work, university, social and church attendances.  He misses doctors’ appointments.  He experiences continual fatigue.

41.     We considered his evidence to best meet the descriptor of 20 points in Table 20:

TWENTY        More severe symptoms with a decreased ability/efficiency to

carry out many everyday activities. Most daily activities can be

completed with some difficulty. Symptoms may prevent or lead
to avoidance of some daily tasks and simple tasks will usually
aggravate symptoms of fatigue. Symptoms cause significant
interference with ability to perform or persist with work-related
tasks. Symptoms may cause prolonged absences from work.

42.     In coming to this view, we especially noted the introduction to Table 20 that double counting must be avoided.

43.     We consider his evidence in relation to his sleep condition would result in his being able to work full time, but as will be discussed below this is unrealistic given his unpredictable hours.  For example, he was unable to continue with his university studies.  We particularly note his ongoing fatigue.

Combined impairment

44.     Taken together Mr Meeth’s combined impairment exceeds 20 impairment points.

45.We therefore turn to the remaining question:

Does Mr Meeth have a continuing inability to work because of the impairment?

46.     Assessment of Mr Meeth‘s continuing ‘inability to work’ must be made in accordance with the legislation as explained by Justice Drummond in Secretary of Department of Social Security v Pusnjak (1999) 56 ALD 444, where the Court set out at 452 the relevant question:

As to s 94 (2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining?

Dr Cook was of the view, in his report of 22 December 2006, that it is impossible for Mr Meeth to pursue regular employment or studies with his sleep disorder and depression.

47.     The Applicant contended though, that the weight of evidence indicates that Mr Meeth does not have a continuing inability to work.  The job capacity assessment report by Mr Harrison indicates that Mr Meeth has a capacity to work more than 30 hours per week within 24 months with educational training, vocational training or on the job training, but conceded that this was an automated response when conditions were considered not to be permanent.

48.     Dr Dodd wrote in his report of 31 January 2007 that:

In my opinion the sleep conditions on their own should not preclude Mr Meeth from being able to perform some sort of work or study although complicating matters are his underlying psychiatric illnesses about which I am unable to comment with any expertise. [Tribunal’s emphasis]

He re-iterated that view in his evidence.  

49.     The concept of continuing inability to work is not confined to a claimant’s ability to undertake work for which they are trained and skilled, but rather their capacity to undertake any work.  It involves consideration of whether the claimant has an impairment which of itself prevents the person from undertaking any work or which prevents the person from undertaking educational or vocational training for a period of two years (and, if such training is not prevented by the impairment, whether such training would be likely to enable a person to undertake any work for the next two years).  See also, Re Watts and Secretary, Department of Family and Community Services [2003] AATA 632 and Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864.

50.     We were referred to Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444, where Justice Drummond noted that it is clear that the legislature intended that attitudinal factors peculiar to a claimant, such as a lack of motivation, could be taken into account when deciding whether the person has a continuing inability to work. Dr Cook gave evidence that he did not consider Mr Meeth to have dysfunctional attitudes about his own potential but was, despite his best efforts, defeated by his conditions. Mr Meeth described lack of motivation as a product of his brain being ‘addled’. He said he saw little point to his existence.

51.     Dr Cook described him as being ‘surprisingly motivated’ to try and find work.  In relation to Mr Meeth’s university endeavours, he commented that it was because of Mr Meeth’s depression and the sleep cycle disorder that he was unable to reliably attend lectures and ended up giving up.  It was not through lack of motivation.

52.     Dr Dodd indicated in his reports, and in his evidence, that Mr Meeth’s sleep disorder conditions on their own should not preclude Mr Meeth from being able to perform some sort of work or study.  He conceded that ‘something’ was impeding Mr Meeth’s ability to work and could suggest nothing other than his psychiatric conditions as the cause. 

53.     Mr Harrison thought Mr Meeth was capable of working as a nurse, taxi driver or in similar shift work jobs.  Dr Dodd’s evidence however was that such roles should be avoided because they would only encourage irregular sleep.

54.     In Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 (at 525), the Tribunal described the realities of the modern workplace and the need to consider the issue of work in its context:

When considering the issue of work in this context, the tribunal is of the view that it is the “normal” workplace against which a person's abilities are to be judged, not the workplace of the “benign employer".

55.     Relying on Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 the Tribunal in Re Triantafillou and Secretary, Department of Family and Community Services (2003) 73 ALD 568, interpreted ‘work’ to be work that is carried out in the ‘open workplace’ and not work that is insulated from dynamic and unpredictable demands.

56.     We do not consider any employer would be able to tolerate Mr Meeth’s unreliability and fatigue.  Further, we accept, his condition would prevent him from benefiting from retraining for work within the next two years, given his previous unsuccessful attempts at study. 

57.     We therefore find that Mr Meeth was, at the relevant date, qualified for DSP because he had an impairment, which is properly rated under the Impairment Tables at, at least 20 points.  We also find that because of the impairment, he had a continuing inability to undertake any work for at least 30 hours per week in the next two years.

DECISION

58.     The decision of the Social Security Appeals Tribunal is affirmed.  The Tribunal therefore finds that Mr Meeth was, at the relevant date qualified for disability support pension because he had psychiatric impairment which is properly rated at, at least 20 points under the Impairment Tables.  Because of the impairment, the Tribunal finds he had a continuing inability to undertake any work for at least 30 hours per week in the two years from the relevant date.  In addition, his impairment would of itself prevent him from undertaking educational or vocational training or on-the-job training during the next two years.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER and DR M THORPE, MEMBER

Signed:         .......... [sgd].....................
  Associate

Dates of Hearing  25 June 2007, 6 November 2007
Date of Decision  11 December 2007
Appearance for Applicant               Mr Anthony Carter
Appearance for the Respondent    Ms Elizabeth Wood